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TCL > September 2011 Issue > Court Business

The Colorado Lawyer
September 2011
Vol. 40, No. 9 [Page  99]

© 2011 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts

Court Business

Visit the related court’s website for complete text of rule changes or proposed rule changes issued by the court. Each court’s website includes corresponding forms, which are not printed in Court Business, and versions with highlights of revisions (deletions and additions). Material printed in Court Business appears as submitted by the court and has not been edited by the staff of The Colorado Lawyer.


Colorado Supreme Court Rules Committee

Notice Requesting Written Comments re
Proposed New Rules for Calculating Trial and Appellate Deadlines
Deadline for Comments: September 30, 2011, 5:00 p.m.

The Colorado Supreme Court is considering significant changes in rules of procedure to simplify how to determine when pre- and post-trial actions must be taken. Although the effective date of some rules will be deferred to July 1, 2012, the majority of the new rules will take effect January 1, 2012.

Given the comprehensive nature of rules, attorneys who appear in civil, criminal, appellate, or other courts are asked to review the applicable proposals and submit written comments to the Court. The proposed changes are available on the and on the Court’s website at www.courts.state.co.us/Courts/Supreme_Court/Rule_Changes.cfm and on the Colorado Bar Association website at www.cobar.org/ors.cfm .

An original plus eight copies of written comments concerning the proposed new rules for calculating trial and appellate deadlines should be submitted by 5:00 p.m. on Friday, September 30, 2011. Address correspondence to: Clerk of the Colorado Supreme Court, Christopher T. Ryan, 101 W. Colfax Ave., Ste. 800, Denver, CO 80202.


Notice Requesting Written Comments re
Proposed Rule 3. Applications for Water Rights
Deadline for Comments: September 30, 2011, 5:00 p.m.
Amendments to Water Court Rules

Any person desiring to file a written comment on Proposed Rule 3 may do so by filing the original and seven copies of the comment no later than Friday, September 30, 2011, at 5:00 p.m. Address correspondence to: Clerk of the Colorado Supreme Court, Christopher T. Ryan, 101 W. Colfax Ave., 8th Fl., Denver, CO 80202.

_________________________

Proposed Amendments to Water Court Rules
Chapter 36. Uniform Local Rules for All State Water Court Divisions
(Showing only provisions that contain proposed rule changes.
Proposed changes are shown in strike and add legislative format.)

Rule 2. Filing and Service Procedure

(b) An applicant shall file and serve upon all parties at least 15 21 days prior to hearing on any application before the water judge, a proposed order that sets forth any necessary findings, terms or conditions that the applicant reasonably believes the court should incorporate into the decree.

Rule 3. Applications for Water Rights

(b)(1) More than one water right, claim or structure may be incorporated in any one application under one caption, provided that the required information is given for each water right, claim, or structure, and that each has the same ownership OWNERS OR USERS IN COMMON.

(2) PERSONS ALONE OR IN CONCERT MAY FILE APPLICATIONS FOR APPROVAL OF PLANS FOR AUGMENTATION, INCLUDING WATER EXCHANGE PROJECTS, AND SUBSEQUENT CHANGES THERETO.

(3) IN APPLICATIONS FOR DETERMINATIONS OF RIGHTS TO GROUND WATER DESCRIBED IN C.R.S. § 37-90-137(4):

(A) IF THE APPLICANT CLAIMS CONSENT OF THE OWNER(S) OF THE OVERLYING LAND AS THE BASIS FOR SUCH A DETERMINATION, THE APPLICATION MUST INCLUDE ONE OR MORE OF THE FOLLOWING DOCUMENTS AS APPLICABLE:

i) IF THE BASIS FOR SUCH CONSENT IS C.R.S. § 37-90-137(4)(b)(II)(A), THE APPLICATION MUST INCLUDE RECORDED COPIES OF a) THE WRITTEN CONSENT FROM THE OWNER(S) OF THE OVERLYING LAND TO THE APPLICANT, WHICH CONSENT INCLUDES A LEGAL DESCRIPTION OF THE LAND AND IDENTIFICATION OF THE AQUIFERS FOR WHICH CONSENT HAS BEEN GIVEN, AND b) AN INSTRUMENT EVIDENCING OWNERSHIP OF SUCH LAND BY SUCH CONSENTING OWNER(S) AT THE TIME SUCH CONSENT WAS GRANTED.

ii) IF THE BASIS FOR SUCH CONSENT IS C.R.S. § 37-90-137(4)(b)(II)(C), THE APPLICATION MUST INCLUDE A CERTIFIED COPY OF a) THE ORDINANCE OR RESOLUTION DESCRIBED IN C.R.S. § 37-90-137(8) THAT INCORPORATES GROUND WATER, AND b) THE PART OF THE DETAILED MAP DESCRIBED IN C.R.S. § 37-90-137(8) THAT SHOWS THE LAND AREA AS TO WHICH CONSENT IS DEEMED TO HAVE BEEN GIVEN.

(B) TWO OR MORE OVERLYING LAND OWNERS MAY FILE A JOINT APPLICATION FOR DETERMINATIONS OR CHANGES OF RIGHTS TO SUCH GROUND WATER TO BE WITHDRAWN THROUGH A "WELL FIELD," PROVIDED THAT THE APPLICATION MUST CONTAIN SUFFICIENT INFORMATION TO DEMONSTRATE THAT LANDS SUBJECT TO THE APPLICATION MEET THE REQUIREMENTS OF A "WELL FIELD" AS DEFINED IN THE "RULES AND REGULATIONS APPLYING TO APPLICATIONS FOR WELL PERMITS TO WITHDRAW GROUND WATER PURSUANT TO SECTION 37-90-137(4), C.R.S.," 2 C.C.R. 402-7. SUCH JOINT APPLICATION MAY INCLUDE ONLY CLAIMS FOR DETERMINATIONS OR CHANGES OF RIGHTS TO GROUND WATER DESCRIBED IN C.R.S. § 37-90-137(4) AND PLANS FOR AUGMENTATION (WITH OR WITHOUT EXCHANGES) RELATED THERETO.

(4) NOTHING CONTAINED IN THIS RULE 3(b) SHALL PREVENT THE CONSOLIDATION OR BIFURCATION OF APPLICATIONS OR PORTIONS THEREOF UNDER OTHER APPLICABLE RULES OR LAW, OR AFFECT OR DISCOURAGE APPLICATIONS INVOLVING A SINGLE APPLICANT OR SINGLE WATER RIGHT, CLAIM OR STRUCTURE.

(c) Where more than one water right was conditionally decreed under one case number, each water right so decreed may, but need not be, incorporated again in an A SINGLE application for a finding of reasonable diligence or to make absolute;, REGARDLESS OF WHETHER SUCH RIGHTS REMAIN IN COMMON OWNERSHIP; however, such an application shall not be combined with any other case or application except by leave of court.

Rule 6. Referral to Referee, Case Management, Rulings, and Decrees

(e) To promote the just, speedy, and cost efficient disposition of water court cases, the goals of the referee, as contemplated by C.R.S. § 37-92-303(1), shall include a ruling on each unopposed application within sixty 60 days after the last day on which statements of opposition may be filed, and all other applications as promptly as possible. In pursuit of this goal, the referee shall initiate consultation with the division engineer in every case promptly after the last day for filing statements of opposition. The division engineer’s written report on the consultation is due within thirty 30 days of the date the referee initiates consultation in accordance with C.R.S. § 37-92-302(4), except that for applications that require construction of a well, the division engineer’s written report is due within four 4 months after the filing of the application in accordance with C.R.S. § 37-92-302(2)(a). Upon request, the referee may extend the time for filing the division engineer’s written report. The division engineer may submit additional written reports upon receipt of new information and shall provide them to the referee and all parties. The referee shall not enter a ruling on applications for determination of rights to groundwater from wells described in C.R.S. § 37-90-137(4) until the state engineer’s office has had the opportunity to issue a determination of facts concerning the application in accordance with C.R.S. § 37-92-302(2)(a). The referee and the division engineer may confer and jointly agree to forego consultation in a particular case because it is not needed; and, if so, the referee shall enter a minute order as provided in section (o) of this Rule 6.

(f) For good cause, upon agreement of the parties, or sua sponte, the referee may extend the time for ruling on the application beyond sixty 60 days after the last day on which statements of opposition may be filed but not to exceed a total of one 1 year following the deadline for filing statements of opposition, except that the referee may extend the time for entering a ruling to a specified date that is not more than six months 182 days after the expiration of the one year period, upon finding that there is a substantial likelihood that the remaining issues in the case can be resolved, without trial before the water judge, in front of the referee.

(h) For all applications in which statements of opposition are filed, the attorney for the applicant, or the referee if the applicant is not represented by counsel, shall set a status conference with the referee and all parties. The status conference shall occur within sixty 63 days after the deadline for filing of statements of opposition, unless the deadline is extended by the referee for good cause. The status conference may be conducted in person or by telephone. All parties must attend the status conference unless excused by the referee. The referee shall advise the division engineer of the status conference and invite or require the division engineer’s participation. To assist discussion at the status conference, applicants are encouraged to prepare and circulate a proposed ruling and proposed decree to the referee and the parties in advance of the conference.

(l) Regardless of whether any expert is involved in the proceedings before the referee, the referee shall not be bound by the opinions and report of the expert, may make investigations without conducting a formal hearing, including site visits, and may enter a ruling supported by the facts and the law. The case management plan shall contain a listing of the disputed issues to the extent known, the additional information needed to assist in resolution of the disputed issues, additional investigations needed to assist in resolving the disputed issues, an estimate of the time required to complete the tasks, the time for filing a proposed ruling and proposed decree, the time for opposers to file comments on the proposed ruling and proposed decree, the time for the applicant to file status reports, and a schedule for further proceedings. The referee may make such interim rulings, including scheduling additional status conferences and allowing amendments to the case management plan, as will facilitate prompt resolution of the application and issuance of a proposed ruling and proposed decree. The proceedings before the referee shall be completed and the proposed ruling and proposed decree issued no later than one 1 year following the deadline for filing of statements of opposition, except that the referee may extend the time as specified in subsection (f) above.

(p) The referee shall have the authority to dismiss for failure to prosecute applications of parties who fail to comply with the requirements of the Water Court Rules or any case management plan, and to dismiss statements of opposition of parties who fail to comply with the requirements of the water court rules or any case management plan. Such dismissal may be protested to the water judge by any party within twenty 21 days of receipt FROM THE DATE of the order of dismissal.

Rule 11. Pre-Trial Procedure, Case Management,
Disclosure, and Simplification of Issues

(c) to shorten time periods whenever possible, unless the water court orders otherwise for good cause shown.

(1) At Issue Date. Water matters shall be considered to be at issue for purposes of C.R.C.P. Rules 16 and 26 forty-five (45) 49 days after the earlier of either of the following: entry of an order of re-referral or the filing of a protest to the ruling of the referee, unless the water court directs otherwise. Unless the water court directs otherwise, the time period for filing a Certificate of Compliance under subsection (b)(7) of this Rule shall be no later than 75 77 days after a case is at issue.

(3) Confer and Exchange Information. No later than 15 14 days after the case is at issue, the lead counsel for each party and any party who is not represented by counsel shall confer with each other about the nature and basis of the claims and defenses, the matters to be disclosed pursuant to C.R.C.P. 26(a)(1), the development of a Certificate of Compliance, and the issues that are in dispute.

(4) Trial Setting. No later than 60 63 days after the case is at issue, the responsible attorney shall set the case for trial pursuant to C.R.C.P. 121, section 1-6, unless otherwise ordered by the water court.

(5) Disclosures.

(A) The time for providing mandatory disclosures pursuant to C.R.C.P. 26(a)(1) shall be as follows:

(I) Applicant’s disclosure shall be made 30 35 days after the case is at issue;

(II) An opposing party’s disclosure shall be made 30 35 days after applicant’s disclosures are made.

(B) The time periods for disclosure of expert testimony pursuant to C.R.C.P. 26(a)(2) shall be as follows:

(I) The applicant’s expert disclosure shall be made at least 240 245 days before trial;

(II) The applicant’s supplemental expert disclosure, if any, shall be made after the first meeting of the experts held pursuant to subsection (b)(5)(D)(I) of this Rule, and served at least 180 182 days before trial;

(III) An opposer’s expert disclosure shall be made at least 120 126 days before trial;

(IV) If the evidence is intended to contradict or rebut evidence on the same subject matter identified by another party under subsection (b)(5)(B)(III) of this Rule, such expert disclosure shall be made at least 90 91 days before trial.

(C) Additional Expert Disclosures. In addition to the disclosures required by C.R.C.P. 26(a)(2)(B)(I), the expert’s disclosure shall include:

(I) A list of all expert reports authored by the expert in the preceding five 5 years; and

(D) Meeting Of Experts To Identify Undisputed Matters of Fact and Expert Opinion and To Refine and Attempt to Resolve Disputed Matters of Fact and Expert Opinion.

(I) The expert witness(es) for the applicant and the opposer(s) shall meet within 45 49 days after the applicant’s initial expert disclosures are made. The meeting(s) may be in person or by telephonic means. The purpose of the meeting is for the experts to discuss the matters of fact and expert opinion that are the subject of the expert(s) disclosures and with respect to such disclosures: to identify undisputed matters of fact and expert opinion, to attempt to resolve disputed matters of fact and expert opinion, and to identify the remaining matters of fact and expert opinion in dispute. The applicant may subsequently file a supplemental disclosure pursuant to Water Court Rule 11(b)(5)(B)(II) to address matters of fact and expert opinion resolved in or arising from the meeting(s) of the experts.

(II) The expert witness(es) for the applicant and the opposer(s) shall meet within 25 28 days after the opposers’ expert disclosures are made. The meeting may be in person or by telephonic means. The purpose of the meeting is for the experts to discuss the matters of fact and expert opinion that are the subject of the expert(s) disclosures and, with respect to such disclosures: to identify undisputed matters of fact and expert opinion, to attempt to resolve disputed matters of fact and expert opinion, and to identify the remaining matters of fact and expert opinion in dispute. Within 15 21 days after such meeting, the experts shall jointly submit to the parties a written statement setting forth the disputed matters of fact and expert opinion that they believe remain for trial, as well as the undisputed matters of fact and expert opinion, arising from the expert disclosures.

(6) Settlement Discussions.

(A) No later than 35 days after the case is at issue, the parties shall explore possibilities of a prompt settlement or resolution of the case.

(B) No later than 60 63 days before trial the parties shall jointly file a statement setting forth the specific disputed issues that will be the subject of expert testimony at trial.

(7) Certificate of Compliance. No later than 75 77 days after the case is at issue, the responsible attorney shall file a Certificate of Compliance. The Certificate of Compliance shall state that the parties have complied with all requirements of subsections (b)(3)-(7) (except (b)(5)(B) through (F) and (b)(6)(B)), inclusive, of this Rule or, if they have not complied with each requirement, shall identify the requirements which have not been fulfilled and set forth any reasons for the failure to comply. A request for a Case Management Conference shall be made at the time for filing the Certificate of Compliance.

(9) Pretrial Motions. Unless otherwise ordered by the court, the time for filing pretrial motions shall be no later than 35 days before the trial date, except that motions pursuant to C.R.C.P. 56 shall be filed at least 90 91 days before the trial date.

(10) Discovery Schedule. Until a case is at issue, formal discovery pursuant to C.R.C.P. 26 through 37 shall not be allowed. Informal discovery, including discussions among the parties, disclosure of facts, documents, witnesses, and other material information, field inspections and other reviews, is encouraged prior to the time a water case is at issue. Unless otherwise directed by the water court or agreed to by the parties, the schedule and scope of discovery shall be as set forth in C.R.C.P. 26(b), except that depositions of expert witnesses shall not be allowed until 30 28 days after the time for filing of the opposers’ C.R.C.P. 26(a)(2) disclosures. The date for completion of all discovery shall be 50 49 days before the trial date.

(c) Modified Case Management Order. Any of the provisions of section (b) of this Rule may be modified by the entry of a Modified Case Management Order pursuant to this section.

(1) Stipulated Modified Case Management Order. No later than 75 77 days after the case is at issue, the parties may file a Stipulated Proposed Modified Case Management Order, supported by a specific showing of good cause for each modification sought including, where applicable, the grounds for good cause pursuant to C.R.C.P. 26(b)(2). Such proposed order need only set forth the proposed provisions which would be changed from the Presumptive Case Management Order set forth in section (b) of this Rule. The Court may approve and enter the Stipulated Modified Case Management Order, or may set a Case Management Conference.

(2) Disputed Motions for Modified Case Management Orders. C.R.C.P. 16(d) shall apply to any disputes concerning a Proposed Modified Case Management Order. If any party wishes to move for a Modified Case Management Order, lead counsel and any unrepresented parties shall confer and cooperate in the development of a Proposed Modified Case Management Order. A motion for a Modified Case Management Order and one form of the proposed Order shall be filed no later than 75 77 days after the case is at issue. To the extent possible, counsel and any unrepresented parties shall agree to the contents of the Proposed Modified Case Management Order but any matter upon which all parties cannot agree shall be designated as "disputed" in the Proposed Order. The proposed Order shall contain specific alternate provisions upon which agreement could not be reached and shall be supported by specific showing of good cause for each modification sought including, where applicable, the grounds for good cause pursuant to C.R.C.P. 26(b)(2). Such motion need only set forth the proposed provisions which would be changed from the Presumptive Case Management Order set forth in section (b) of this Rule. The motion for a Modified Case Management Order shall be signed by lead counsel and any unrepresented parties, or shall contain a statement as to why it is not so signed.

3. If the evidence is intended to contradict or rebut evidence on the same subject matter identified by another party, such disclosures shall be made NO LATER THAN within 20 91 days BEFORE TRIAL after the disclosure was made by the other party.

IV. DISCOVERY SCHEDULE

Discovery shall be in accordance with Water Court Rule 11. The date for completion of discovery shall be __________, 20 ___ [no later than 50 49 days prior to trial or such time as the court shall direct].

Rationale for proposed rule change

This proposed rule change, if adopted, would convert time periods contained in the current Water Court Rules to uniform increments of 7 in place of the various time periods currently specified in the rules. This would conform to the Civil Rules Committee’s suggestion that all Colorado court rules be converted to "the rule of 7" as with Federal Rules. This proposal does not propose any change for time periods prescribed by Colorado water statutes.

In addition, this proposed rule change proposes to revise Rule 3 to accommodate multiple applicants in a single application for augmentation and exchange plans and non-tributary groundwater applications. These are circumstances involving common ownership or subdivisions situations in which a single application is a more efficient and economical manger for providing notice and managing the adjudication.


Notice Requesting Written Comments and Executive Summary re
Revisions to Chapter 24. Colorado Rules of Judicial Discipline
Deadline for Comments: September 30, 2011, 5:00 p.m.

The Colorado Supreme Court is requesting written public comments by any interested person on revisions to Chapter 24 of the Colorado Rules of Judicial Discipline. An original plus eight copies of written comments concerning the Colorado Rules of Judicial Discipline should be submitted to the Clerk of the Colorado Supreme Court, Christopher T. Ryan, 101 W. Colfax Ave., Ste. 800, Denver, CO 80202, no later than 5:00 p.m., Friday, September 30, 2011. A summary of the revisions to the Colorado Rules of Judicial Discipline is printed below. The complete revised rules can be found on the Court’s website at www.courts.state.co.us/Courts/Supreme_Court/Rule_Changes.cfm.

By the Court:

Michael L. Bender, Chief Justice
Colorado Supreme Court


Executive Summary of Revisions to the
Chapter 24. Colorado Rules of Judicial Discipline

After months of study, debate, meetings, and reconsideration, the Commission on Judicial Discipline recently proposed a number of revisions to the Colorado Rules of Judicial Discipline (RJD). The Colorado Supreme Court approved these changes in June, and the new rules will take effect in January 2012.

Changes to the RJD were motivated by the Commission’s experience that certain of the Rules didn’t adequately address the manner in which the Commission should fulfill its responsibilities under Article VI, Section 23(3), of the Colorado Constitution. In particular, concerns had been raised regarding the lack of procedural detail in some aspects of the rules; the scope of the confidentiality provisions; the absence of guidelines as to how to treat cases involving a judge’s mental or physical disability; the authority and responsibility of Commission staff; procedures around a judge’s temporary suspension; and the extent of the Commission’s jurisdiction over a judge who has resigned or retired.

Revisions to the Colorado rules were informed in large measure by the ABA Model Rules for Judicial Disciplinary Enforcement. The Model Rules were promulgated with the goals of ensuring prompt and fair discipline for judges; enhancing public confidence in the judiciary and judicial discipline system; protecting the public and judiciary; and safeguarding the independence of the judiciary. The Commission concluded, however, that certain aspects of the Model Rules could not be incorporated into Colorado’s rules consistent with the constraints of the state Constitution’s requirements of the Commission and the disciplinary process, particularly regarding confidentiality. The Commission also turned to the Office of Attorney Regulation for guidance regarding the rulemaking process and its experience with attorney disciplinary and disability proceedings. Consequently, the proposed changes include several Model Rule provisions, as well as adaptation of certain Model Rules to reflect the unique needs and requirements of Colorado’s judicial discipline system.

Although some of the revisions merely update terminology and format, others contain important substantive changes. Among the most significant modifications are the following:

• New RJD 33.5 provides guidelines as to how the Commission should handle cases involving physical or mental disabilities. Previously, the rules only referred to disabilities in the context of sanctions available in disciplinary proceedings. The new provisions, however, detail the manner in which proceedings can be commenced, distinguish disability from disciplinary proceedings, and provide for various procedures and outcomes if a judge is found to be or stipulates to a disability. The new rule is an amalgam of the ABA Model Rules, practices and procedures of the Office of Attorney Regulation, and the Commission’s view of measures that would be fair and practical.

• A substantial amendment of the confidentiality and privilege provisions (RJD 6.5). The Colorado Constitution provides that "papers" and "proceedings" of the Commission are confidential until a recommendation is filed with the Supreme Court regarding discipline of a judge or justice. This provision was intended to safeguard the disciplinary process—shielding the complainant from public embarrassment and fear of reprisal from the judicial officer accused, protecting the reputation of a judge from false accusations while investigations into the complaint are conducted, and promoting confidence in the judiciary by preventing the premature disclosure of unfounded complaints. The previous version of the rule, however, was sometimes read to shield from disclosure in circumstances where the public, attorney discipline agencies, or law enforcement should know about the discipline; the new rule establishes somewhat broader and more clearly defined exceptions to the confidentiality requirement. The new rule also would authorize the Commission to publish summaries of its privately-administered disciplinary dispositions and the Supreme Court’s sanctions.

• A clarification of the Commission’s jurisdiction over a judge who resigns, retires, or does not seek retention (RJD 4). The rule provides that the Commission’s jurisdiction includes misconduct or a disability that occurred while the judge was an active or senior judge, if the complaint is filed (or commenced by the Commission on its own motion) while the judge is still serving or within one year following the end of the judge’s term of office, date of retirement or resignation, or the end of the judge’s service as a senior judge. The Commission’s jurisdiction continues until a disposition or sanction is determined.


Rule Change 2011(7)
Colorado Rules of Criminal Procedure
Criminal Rule 41. Search, Seizure, and Confession
Amended

Rule 41. Search, Seizure, and Confession

(a) through (b) [No Change]

(c) Application for Search Warrant

(1) through (2.5) [No Change]

(3) Application and Issuance of a Warrant by Facsimile or Electronic Transmission. A warrant, signed affidavit, and accompanying documents may be transmitted by electronic facsimile transmission (fax) or by electronic transfer with electronic signatures to the judge, who may act upon the transmitted documents as if they were originals. A warrant affidavit may be sworn to or affirmed by administration of the oath over the telephone by the judge. The affidavit with electronic signature received by the judge or magistrate and the warrant approved by the judge or magistrate, signed with electronic signature, shall be deemed originals. The judge or magistrate shall facilitate the filing of the original affidavit and original warrant with the clerk of the court and shall take reasonable steps to prevent the tampering with the affidavit and warrant. The issuing judge or magistrate shall also forward a copy of the warrant and affidavit, with electronic signatures, to the affiant. This subsection (c)(3) does not authorize the court to issue warrants without having in its possession either a faxed copy of the signed affidavit and warrant or an electronic copy of the affidavit and warrant with electronic signatures.

Committee Comment: For purposes of this rule, the term "electronic signature" has the same meaning as used in C.R.S. § 16-1-106(4)(c).

Amended by the Court, En Banc, June 16, 2011, effective immediately.

By the Court:

Alex J. Martinez, Justice
Colorado Supreme Court


Rule Change 2011(8)
Colorado Rules of Civil Procedure
Chapter 17B. Appointed Judges
Rule 122. Case Specific Appointment of Appointed Judges
Pursuant to CRS § 13-3-111
Rule 516. Small Claims Courts Costs
Rule 6. Traffic Infractions. Payment Before Appearance
Appendix to Chapters 1 to 17A Forms
Amended and Adopted

Rule 122. Case Specific Appointment of Appointed Judges
Pursuant to CRS § 13-3-111.

(a) and (b) [No Change]

(c) Motion for Appointment

(1) and (2) [No Change]

(3) The Appointed Judge’s agreement to be bound by Section II of the Colorado Code of Judicial Conduct, Applicability of Code to Senior and Retired Judges, and the Appointed Judge’s agreement that the Chief Justice may ask the Office of Attorney Regulation Counsel and the Colorado Commission on Judicial Discipline for any record of his or her imposed discipline, or pending disciplinary proceeding, if any;

(4) through (10) [No Change]

Rule 516. Costs

The prevailing party in the action in a small claims court shall have judgment to recover costs of the action and also the costs to enforce the judgment as provided by law.

Rule 6. Payment Before Appearance

(a) The clerk of court shall accept payment of a penalty assessment notice by a defendant without an appearance before the referee, if payment is made before the time scheduled for the first appearance.

(b) and (c) [No Change]

Appendix to Chapters 1 to 17A Forms

Amended Form 29—Writ of Garnishment With Notice of Exemption and Pending Levy

(Forms are available online at www.courts.state.co.us/Forms/Index.cfm)

Amended and Adopted by the Court, En Banc, June 16, 2011, effective immediately.

By the Court:

Nancy E. Rice, Justice,
Colorado Supreme Court


Rule Change 2011(9)
Chapter 36. Uniform Local Rules for All State Water Court Divisions
Rule 11. Pre-Trial Procedure, Case Management, Disclosure,
and Simplification of Issues
Amended

(a) through (b)(5)(D)(II) [No Change]

(b)(5)(D)(III) The content of the meetings of the experts and the written statement produced prepared pursuant to Water Court Rule 11(b)(5)(D)(II) shall be considered as conduct or statements made in compromise negotiations within the ambit of CRE 408. For this reason, notes taken by the experts or other records of the discussion during these meetings shall not be discoverable, and none of the content of the meetings of the experts or the written statement prepared shall be admissible at trial. The meetings of the experts shall not include the attorneys for the parties or the parties themselves, unless they are the designated expert(s).

(b)(5)(E) through (d) [No Change]

Committee Comment:

Amended Rule 11, which became effective July 1, 2009, provides for meetings of the experts without attorneys for the parties or the parties themselves. Effective July 1, 2011, Rule 11 is further amended in subsection (b)(5)(D)(III) to make explicit the non-discoverability and non-admissibility of the notes, records, content of discussions, and written statement prepared by the experts in accordance with the rule, and, further, to clarify that the meetings of the experts exclude attorneys for the parties or the parties themselves unless they are designated experts. These clarifying changes apply nunc pro tunc on and after July 1, 2009.

In addition, the following Suggested Guide is included in this Comment by way of example for conduct of the meetings of the experts and preparation of the joint written statement of the experts.

Suggested Guide for Conducting Meetings of the Experts in
Water Court Proceedings and Preparing Written Statement

Introduction

The purpose of this guide is to assist experts engaged in water court cases to efficiently conduct the first and second meetings of the experts described in Water Court Rule 11 and prepare the written statement of the experts. As the title above indicates, this guide provides suggested procedures and guidelines in conducting these meetings and preparing the written statement. The experts in each case may adapt these guidelines for their own specific circumstances.

Conduct of the Two Meetings

Meeting Notes:

Water Court Rule 11(b)(5)(D)(III), as amended effective July 1, 2011 nunc pro tunc on and after July 1, 2009 reads:

"The content of the meetings of the experts and the written statement prepared pursuant to Water Court Rule 11(b)(5)(D)(II) shall be considered as conduct or statements made in compromise negotiations within the ambit of CRE 408. For this reason, notes taken by the experts or other records of the discussion during these meetings shall not be discoverable, and none of the content of the meetings of the experts or the written statement prepared shall be admissible at trial. The meetings of the experts shall not include the attorneys for the parties or the parties themselves, unless they are the designated expert(s)."

Tips for Conducting the Meetings of Experts:

  • Applicant’s expert is the chair and therefore controls the flow of the meetings. If the Applicant has more than one expert in the case, one of its experts should be designated to run the meeting.
  • Pass a signup sheet for names, phone numbers and email addresses.
  • Prepare an agenda and stick to it.
  • Limit protracted discussions and arguing.
  • Don’t become entangled in difficult issues and fail to cover others.
  • OK to identify legal issues, but don’t argue and discuss in detail.
  • Try to keep meetings to a reasonable length.
  • Participation in person is encouraged.

Scheduling the Meetings of the Experts:

Scheduling of the meetings of the experts is to be initiated by counsel for the parties, led by the attorney for the Applicant. The selected date should involve the largest number of participating experts possible. If scheduling does not permit one or more experts to attend, they have the option of submitting initial comments to the group via email prior to the meeting.

First Meeting of the Experts

Excerpt from Rule 11(b)(5)(D)(I):

"Meeting Of Experts To Identify Undisputed Matters of Fact and Expert Opinion and To Refine and Attempt to Resolve Disputed Matters of Fact and Expert Opinion.

The expert witness(es) for the applicant and the opposer(s) shall meet within 45 days after the applicant’s initial expert disclosures are made. The meeting(s) may be in person or by telephonic means. The purpose of the meeting is for the experts to discuss the matters of fact and expert opinion that are the subject of the expert(s) disclosures and with respect to such disclosures: to identify undisputed matters of fact and expert opinion, to attempt to resolve disputed matters of fact and expert opinion, and to identify the remaining matters of fact and expert opinion in dispute. The applicant may subsequently file a supplemental disclosure pursuant to Water Court Rule 11(b)(5)(B)(II) to address matters of fact and expert opinion resolved in or arising from the meeting(s) of the experts."

Timing of First Meeting:

Within 45 days following Applicant’s initial expert disclosures.

Goals:

  • Allow Applicant’s experts to explain the engineering approach in the application.
  • Identify and screen issues pertaining to facts and expert opinions.
  • Discuss Applicant’s draft decree provisions dealing with issues of fact and expert opinion.
  • Enable Applicant’s experts to address potentially solvable issues of fact and expert opinion in a supplemental report prior to the opposers’ disclosures.
  • Clarify issues of fact and expert opinion and clear up misunderstandings relating to the case.
  • Exchange information, such as additional backup data and calculations relating to the expert disclosures.

Not Goals:

  • Solve legal issues.
  • Achieve final settlement of the case.
  • Engage in unproductive argument.
  • Write decree language.

Suggested Sample Agenda for First Meeting of the Experts:

  • Introductions, roll call, pass signup sheet.
  • Set ground rules and goals of expert meeting.
  • Applicant’s experts give a brief overview of the application.
  • Applicant’s experts walk through facets of case, one at a time.
    • Poll opposers’ experts for whether or not they have issues for each facet.
    • Note and put aside contested issues for later discussion.
  • Opposers’ experts discuss concerns regarding Applicant’s initial disclosures.
    • Go around table, each opposer’s expert provides brief discussion of areas of disagreement.
    • Provide alternative approaches if applicable.
  • Applicant’s experts verbally summarize issues discussed in meeting.
    • Categorize issues into areas of agreement and disagreement.
  • Q&A Session
    • Exchange of information, arrange to provide additional backup information, if necessary.
  • Schedule second meeting of the experts, if appropriate.
  • Adjourn

Second Meeting of the Experts

Excerpt from Rule 11(b)(5)(D)(II):

"The expert witness(es) for the applicant and the opposer(s) shall meet within 25 days after the opposers’ expert disclosures are made. The meeting may be in person or by telephonic means. The purpose of the meeting is for the experts to discuss the matters of fact and expert opinion that are the subject of the expert(s) disclosures and, with respect to such disclosures: to identify undisputed matters of fact and expert opinion, to attempt to resolve disputed matters of fact and expert opinion, and to identify the remaining matters of fact and expert opinion in dispute. Within 15 days after such meeting the experts shall jointly submit to the parties a written statement setting forth the disputed matters of fact and expert opinion that they believe remain for trial, as well as the undisputed matters of fact and expert opinion, arising from the expert disclosures."

Timing of Second Meeting:

Within 25 days following Opposers’ expert disclosures.

Goals:

  • Identify and screen remaining disputed matters of facts and expert opinion.
  • Discuss decree provisions dealing with matters of fact and expert opinion.
  • Enable Applicant’s experts to address potentially solvable matters of fact and expert opinion in their forthcoming rebuttal reports.
  • Organize a plan and schedule for preparing joint written statement setting forth disputed and undisputed matters of fact and expert opinion.

Not Goals:

  • Solve legal issues.
  • Achieve final settlement of the case.
  • Engage in unproductive argument.
  • Write decree language.

Suggested Sample Agenda for Second Meeting of the Experts:

  • Introductions, roll call, pass signup sheet.
  • Set ground rules and goals for meeting.
  • Applicant’s experts walk through matters of fact and expert opinion identified in objectors’ expert disclosures. Applicant’s experts do the following for each issue:
    • Summarize the matter.
    • Identify which parties’ experts raised the matter.
    • Ask objectors’ experts for additional explanation or clarification, if necessary.
    • Indicate whether issue appears to be resolvable, not resolvable, or if there may be common ground to limit the issue.
    • Call on objectors’ experts to comment on matter, and possible common ground.
    • Repeat for each matter.
  • Objectors’ experts indicate if there are other matters of fact and expert opinion that were not discussed by the Applicant’s experts.
  • Discuss process and schedule to prepare joint written statement.
    • One of the Applicant’s experts prepares first draft and emails to objectors’ experts. This should be done quickly while contents of meeting are fresh.
    • Objectors’ experts email comments on draft written statement to all experts.
    • One of Applicant’s experts prepares final joint written statement, considering comments from objectors’ experts. If, based on the comments from objectors’ experts, any disagreement exists as to how an issue is summarized, then this disagreement should be set forth in the final joint written statement.
    • One of Applicant’s experts submits final joint written statement to all experts and to Applicant’s attorney for distribution to parties.
  • Adjourn meeting

Purpose of Joint Written Statement

Excerpt from Rule 11(b)(5)(D)(II):

"Within 15 days after such meeting the experts shall jointly submit to the parties a written statement setting forth the disputed matters of fact and expert opinion that they believe remain for trial, as well as the undisputed matters of fact and expert opinion, arising from the expert disclosures."

The written statement is not admissible at trial. The statement will be provided to all the parties and will be used by the attorneys when preparing a statement that will be filed with the court setting forth the undisputed matters of fact and expert opinion and the disputed matters of fact and expert opinion that remain for trial.

Suggested Process to Prepare Joint Written Statement

One of the last agenda items for the second meeting of the experts should be discussion of the process, schedule and content of the joint written statement. One of the Applicant’s experts should take the lead and prepare the first draft of the statement and send it to the other experts in the case. This should be done immediately after the meeting. Opposers’ experts should promptly provide comments to Applicant’s experts. If the experts cannot agree on specific language in the statement, this disagreement should be noted in the document. For guidance only, the following is a suggested outline of a sample written statement of the experts.

Suggested Outline of Sample Written Statement of the Experts
Case No. [xxCWxxx]
Applicant: [name of applicant]
Joint Statement of Undisputed Matters of
Fact and Expert Opinion

and Remaining Disputed Matters of Fact and Expert Opinion
[Date]

In accordance with Water Court Rule 11(b)(5)(D)(II) and the Case Management Order in Case No. [xxCWxxx], the experts shall jointly submit to the parties a written statement setting forth the disputed matters of fact and expert opinion that they believe remain for trial, as well as the undisputed matters of fact and expert opinion, arising from the expert disclosures. The first meeting of the experts working on this case was held at [location] on [date]. In attendance were [list of attendees, the objector that they represent, and whether they attended in person or by phone]. The second meeting of the experts in this application met at [location] on [date]. In attendance were [list of attendees, the objector that they represent, and whether they attended in person or by phone]. A draft of the joint written statement was prepared by [expert for applicant] and was delivered to the experts for objectors [objector No. 1, name of expert(s)], [objector No. 2, name of expert(s)], [objector No. 3, name of expert(s)] on [date]. Written comments were received via email from [name of expert] on [date] and [name of expert] on [date]. The following summarizes the undisputed the disputed matters of fact and expert opinion.

Undisputed Matters of Fact and Expert Opinion

[The following is a small sample list of possible matters, depending on the case involved]

1. Use of the Glover bounded alluvial aquifer method with the input parameters included in Table x of the Applicant’s Supplemental Expert Report is an appropriate method to determine the lagging of stream depletions from the subject wells included in the application.

2. A study period of 1950 through 2003 is an acceptable period of analysis for historical use of the xyz Ditch.

3. The historically irrigated area for the XYZ Ditch was 120 acres.

4. The historical cropping pattern for the XYZ Ditch was 50% corn and 50% alfalfa.

5. There is sufficient unappropriated water available in the Hopeful River Basin to justify the junior conditional storage right for the ABC Reservoir.

6. Use of a Modflow-based numerical ground water model is an appropriate method for estimating lagging of recharge accretions.

Remaining Disputed Issues of Fact and Expert Opinion

[The following is a small sample list of possible matters, depending on the case involved]

1. Whether or not the assumed 60 percent maximum irrigation field efficiency is appropriate for the subject irrigated lands under the xyz Ditch

2. Whether or not the 120 acres will dry up following the cessation of irrigation, or will evapotranspiration occur from shallow ground water.

3. Whether or not separate flow meters are needed to measure water pumped to each separate use under the wells.

4.Whether or not a 5 year projection tool for the plan for augmentation is sufficiently long to prevent injury.

5. Whether or not the Applicant has established a specific plan to use the water stored in the ABC Reservoir for industrial uses.

6. Whether or not the method of calculating future evaporation from the ABC Reservoir proposed by the Applicant is sufficient to prevent injury.

7. Whether the GGG Ditch historically irrigated 100 acres of land. Some of the objectors feel that there is insufficient factual basis to support the claimed 100 acres, and assert that additional investigation is needed.

8.Whether the river conductance value used by the Applicant in its Modflow River Package is correct.

Signed,

____________________________________________
____________________________________________

[Expert No. 1] [Expert No. 2]
[Expert No. 3] [Expert No. 4]

Amended by the Court, En Banc, June 23, 2011, effective July 1, 2011, nunc pro tunc on and after July 1, 2009.

By the Court:

Gregory J. Hobbs, Jr., Justice
Colorado Supreme Court


Rule Change 2011(10)
Colorado Rules of Civil Procedure
Rule 201.3(3) Classification of Applicants
Rule 224. Provision of Legal Services Following
Determination of a Major Disaster (new)
Rule 226.5. Legal Aid Dispensaries and Law Student Externs (new)
Rule 251.5. Grounds for Discipline
Rule 254. Colorado Lawyer Assistance Program (new)
Amended and Adopted

Rule 201.3(3) Classification of Applicants

(3) A full-time commissioned officer and judge advocate of the military services of the United States stationed in this state may be temporarily admitted to the Bar of Colorado, upon request of his or her commanding officer. Such admission shall be solely for the purpose of practice and court appearance in his or her capacity as a judge advocate and shall continue only as long as he or she is serving as a judge advocate in Colorado, except that the attorney shall also be allowed to act as a pro bono/emeritus attorney as described in C.R.C.P. 223(1) below without further application or fee.

Rule 224. Provision of Legal Services Following
Determination of a Major Disaster

(1) Determination of Major Disaster. Solely for purposes of this rule, the Supreme Court shall determine when an emergency affecting the justice system, as a result of a natural or other major disaster, has occurred in:

(a) The state of Colorado, and whether the emergency caused by the major disaster affects the entirety or only a part of this state, or

(b) Another jurisdiction in the United States, but only after such a determination and its geographical scope have been made by the highest court of that jurisdiction.

(2) Temporary Practice in Colorado Following a Major Disaster in Colorado. Following the determination of an emergency in Colorado pursuant to paragraph (1) of this rule, an out-of-state attorney who meets the conditions of C.R.C.P. 220 (1)(a) and (b) may be allowed to establish a place for the temporary practice of law from which the attorney may provide legal services not otherwise authorized by Rule 220. The terms and conditions of such temporary practice will be set forth in the Supreme Court’s emergency order, and will depend upon the nature and extent of the emergency affecting the justice system, and the needs for legal services resulting from such emergency.

(3) Temporary Practice in Colorado Following a Major Disaster in Another Jurisdiction. Following the determination of a major disaster in another jurisdiction in the United States, pursuant to paragraph (1) of this rule, an out-of-state attorney who meets the conditions of C.R.C.P. 220(1) (a) and (b) may establish a place for the temporary practice of law in Colorado not otherwise authorized by C.R.C.P. 220, from which such attorney may provide legal services related to that attorney’s practice of law in the licensing jurisdiction or the area of such licensing jurisdiction where the major disaster occurred.

(4) Duration of Authority for Temporary Practice. The authority for an out-of-state attorney to maintain a place for the practice of law in Colorado as described in paragraphs (2) and (3) shall end when the Supreme Court determines that the conditions caused by the major disaster have ended. The Supreme Court may allow a winding down period for such temporary practice offices.

(5) Court Appearances. The authority granted by this rule does not include appearances in Colorado state courts of record or administrative tribunals, except:

(a) When the out-of-state attorney files a motion for pro hac vice admission pursuant to C.R.C.P. 221 and 221.1, and obtains permission from the trial court for such appearance (the Supreme Court may waive pro hac vice admission fees at the time of the determination of the major disaster as described in paragraph (1) or at any time thereafter while the determination remains in effect); or

(b) When the Supreme Court, in any determination made under paragraph (1), grants blanket permission to attorneys providing legal services pursuant to paragraph (2) to appear in all or designated Colorado courts or administrative tribunals, thereby suspending the pro hac vice application and fee requirements set forth in C.R.C.P. 221 and 221.1.

(6) Disciplinary Authority and Registration Requirement. Out-of-state attorneys who establish a place for the temporary practice of law in Colorado pursuant to paragraphs (2) or (3) are subject to this Supreme Court’s disciplinary authority and the Colorado Rules of Professional Conduct as provided in C.R.C.P. 220(3) and Colo. RPC 8.5. Prior to opening such place for the temporary practice of law in Colorado, these out-of-state attorneys shall file a registration statement with the Colorado Supreme Court Office of Attorney Registration. The registration statement shall be in a form prescribed by the Supreme Court. Any out-of-state attorney who provides legal services pursuant to this rule shall not be considered to be engaged in the unauthorized practice of law in Colorado, and shall be deemed, for the purposes of Colorado Revised Statutes, Title 12, Article 5, Sections 101, 112 and 115, to have obtained a license for the limited scope of practice specified in this rule.

(7) Notification to Clients. Out-of-state attorneys who establish a place for the temporary practice of law in Colorado pursuant to paragraph (2) shall inform Colorado clients in writing, at the time the relationship commences, of the jurisdiction(s) in which the attorney is licensed or otherwise authorized to practice law, any limits on that authorization, and that the attorney is not authorized to practice law in Colorado except as permitted by this rule and the Court’s emergency order.

Rule 226.5.Legal Aid Dispensaries and Law Student Externs

(1) Legal Aid Dispensaries.

Students of any law school that maintains a legal-aid dispensary where poor or legally underserved persons receive legal advice and services shall, when representing the dispensary and its clients, be authorized to advise clients on legal matters and appear in any court or before any administrative tribunals or arbitration panel in this state as if licensed to practice law.

(2) Law Student Externs.

A. Practice by law student extern (formerly section 12-5-116.1)

(1) An eligible law student extern, as specified in section 2B, may appear and participate in any civil proceeding in any municipal, county, or district court (including domestic relations proceedings) or before any administrative tribunal in this state, or in any county or municipal court criminal proceeding, except when the defendant has been charged with a felony, or in any juvenile proceeding in any municipal, county or district court, or before any magistrate in any juvenile or other proceeding or any parole revocation under the following circumstances:

(a) If the person on whose behalf the extern is appearing has provided written consent to that appearance and the law student extern is under the supervision of a supervising lawyer, as specified in section 2D.

(b) When representing the office of the state public defender and its clients, if the person on whose behalf the extern is appearing has provided written consent to that appearance and the law student extern is under the supervision of the public defender or one of his deputies.

(c) On behalf of the state or any of its departments, agencies, or institutions, a county, a city, or a municipality , with the written approval and under the supervision of the attorney general, attorney for the state, county attorney, district attorney, city attorney, or municipal attorney. A general approval for the law student extern to appear, executed by the appropriate supervising attorney pursuant to this paragraph (c), shall be filed with the clerk of the applicable court/administrative tribunal and brought to the attention of the judge/presiding officer thereof.

(d) On behalf of a nonprofit legal services organization where poor or legally underserved persons receive legal advice and services if the person on whose behalf the student is appearing has provided written consent to that appearance and the law student extern is under the supervision of a supervising lawyer, as specified in Section 2D.

(2) The consent or approval referred to in subsection (1) of this section, except a general approval, shall be made in the record of the case and shall be brought to the attention of the judge of the court or the presiding officer of the administrative tribunal.

(3) In addition to the activities authorized in subsection (1) of this section, an eligible law student extern may engage in other activities under the general supervision of a supervising lawyer, including but not limited to the preparation of pleadings, briefs, and other legal documents which must be approved and signed by the supervising lawyer and assistance to indigent inmates of correctional institutions who have no attorney of record and who request such assistance in preparing applications and supporting documents for post conviction relief.

B. Eligibility requirements for law student extern practice (formerly section 12-5-116.2)

(1) In order to be eligible to make an appearance and participate pursuant to section 2A, a law student must:

(a) Be duly enrolled in an ABA accredited law school, or a recent graduate of such a law school who has applied for admission to the Colorado Bar. For purposes of this rule, the "law student’s" eligibility continues after graduation from law school and until the announcement of the results of the first bar examination following the student’s graduation, provided for anyone who passes that examination, eligibility shall continue in effect through the date of the first swearing in ceremony following the examination.

(b) Have completed a minimum of two years of legal studies;

(c) Have the certification of the dean of such law school that the dean has no personal knowledge of or knows of nothing of record that indicates that the student is not of good moral character and, in addition, that the law student has completed the requirements specified in paragraph (b) of this subsection (1) and is a student in good standing, or recently graduated. The dean of such law school has no continuing duty to certify the student’s good moral character after the student has graduated from law school [at that point, the law student/applicant to the Colorado Bar has obligations to maintain the integrity of the profession pursuant to Colo. RPC 8.1].

(d) Be introduced to the court or administrative tribunal in which the extern is appearing as a law student extern by a lawyer authorized to practice law in this state;

(e) Neither ask nor receive any compensation or remuneration of any kind for the extern’s services from the person on whose behalf the extern renders services; but such limitation shall not prevent the law student extern from receiving credit for participation in the law school externship program upon prior approval of the law school, nor shall it prevent the law school, the state, a county, a city, a municipality , or the office of the district attorney or the public defender from paying compensation to the law school extern, nor shall it prevent any agency from making such charges for its services as it may otherwise properly require; and

(f) State that the extern has read, is familiar with, and will be governed in the conduct of the extern’s activities under section 2A by the Colorado Rules of Professional Conduct.

C. Certification of law student extern by laws school dean—filing—effective period—withdrawal by dean or termination (formerly section 12-5-116.3)

(1) The certification by the law school dean, pursuant to section 2B(1)(c), required in order for a law student extern to appear and participate in proceedings:

(a) Shall be filed with the clerk of the Colorado Supreme Court Office of Attorney Registration, and unless it is sooner withdrawn, shall remain in effect until the student’s graduation.

(b) May be withdrawn by the dean at any time by mailing a notice to that effect to the clerk of the Colorado Supreme Court Office of Attorney Registration, and such withdrawal may be without notice or hearing and without any showing of cause; and

(c) May be terminated by the supreme court at any time without notice or hearing and without any showing of cause.

D. Qualifications and requirements of supervising lawyer (formerly section 12-5-116.4)

(1) A supervising lawyer, under whose supervision an eligible law student extern appears and participates pursuant to section 2A, shall be authorized to practice law in this state and:

(a) Shall be a lawyer working for or on behalf of an organization identified in sections 2A(1)(b)–(d);

(b) Shall assume personal professional responsibility for the conduct of the law student extern; and

(c) Shall assist the law student extern in the extern’s preparation to the extent the supervising lawyer considers it necessary.

Rule 251.5. Grounds for Discipline

Misconduct by an attorney, individually or in concert with others, including the following acts or omissions, shall constitute grounds for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship:

(a) Any act or omission which violates the provisions of the Code of Professional Responsibility or the Colorado Rules of Professional Conduct;

(b) Any criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; provided that conviction thereof in a criminal proceeding shall not be a prerequisite to the institution of disciplinary proceedings, and provided further that acquittal in a criminal proceeding shall not necessarily bar disciplinary action;

(c) Any act or omission which violates these Rules or which violates an order of discipline or disability; or

(d) Failure to respond without good cause shown to a request by the committee, the Regulation Counsel, or the Board of Trustees of the Colorado Attorneys’ Fund for Client Protection or obstruction of the committee, the Regulation Counsel, or the Board or any part thereof in the performance of their duties. Good cause includes, but is not limited to, an assertion that a response would violate the respondent’s constitutional privilege against self-incrimination.

This enumeration of acts and omissions constituting grounds for discipline is not exclusive, and other acts or omissions amounting to unprofessional conduct may constitute grounds for discipline.

Rule 254. Colorado Lawyer Assistance Program

(1) Colorado Lawyer Assistance Program. The Colorado Supreme Court hereby establishes an independent Colorado Lawyer Assistance Program ("COLAP"). The goal of such program is:

(a) To protect the interests of clients, litigants and the general public from harm caused by impaired attorneys or judges;

(b) To assist impaired members of the legal profession to begin and continue recovery; and

(c) To educate the bench, bar and law schools to the causes of and remedies for impairments affecting members of the legal profession.

Such program and its director shall be under the supervision of the Supreme Court Advisory Committee ("Advisory Committee") as set forth in C.R.C.P. 251.34(b)(3).

(2) COLAP Services. The Attorney Assistance Program shall provide the following services:

(a) Immediate and continuing assistance to members of the legal profession who suffer from physical or mental disabilities that result from disease, disorder, trauma or age and that impair their ability to practice;

(b) Planning and presentation of educational programs to increase the awareness and understanding of members of the legal profession to recognize problems in themselves and in their colleagues; to identify the problems correctly; to reduce stigma; and, to convey an understanding of appropriate ways of interacting with affected individuals;

(c) Investigation, planning and participation in interventions with members of the legal profession in need of assistance;

(d) Aftercare services upon request, by order, or under contract that may include the following: assistance in structuring aftercare and discharge planning; assistance for entry into appropriate aftercare and professional peer support meetings; and assistance in obtaining a primary care physician or local peer counselor; and

(e) Monitoring services that may include the following: alcohol and/or drug screening programs; tracking aftercare, peer support and twelve step meeting attendance; providing documentation of compliance; and providing such reports concerning compliance by those participating in a monitoring program as may be required by the terms of that program.

(3) Director. The Advisory Committee shall recruit, retain, and supervise a COLAP Director. The Director shall serve at the pleasure of the Advisory Committee as an at-will employee. The Advisory Committee shall set the Director’s annual salary subject to periodic review. The Director shall have the same employee benefits as the employees of the Colorado Judicial Department. The Director shall coordinate the annual budget of COLAP with the Advisory Committee. A portion of the annual attorney registration fee shall be used to establish and administer COLAP.

(4) Qualifications. The director shall have sufficient experience and training to enable the director to identify and assist impaired members of the legal profession.

(5) Powers and Duties. The COLAP Director shall act in accordance with these Rules and shall:

(a) Provide initial response to help line calls.

(b) Help Attorneys, judges, law firms, courts and others to identify and intervene with impaired members of the legal profession.

(c) Help members of the legal profession to secure expert counseling and treatment for chemical dependency and other illnesses, maintaining current information on available treatment services, both those that are available without charge as well as paid services.

(d) Establish and maintain regular contact with other bar associations, agencies and committees that serve either as sources of referral or resources in providing help.

(e) Establish and oversee monitoring services with respect to recovery of members of the legal profession for whom monitoring is appropriate.

(f) Plan and deliver educational programs for the legal community with respect to all sources of potential impairment as well as treatment and preventative measures.

(h) Perform such other duties as the Supreme Court or Advisory Committee may direct.

(6) Confidentiality.

(a) Information and actions taken by COLAP shall be privileged and held in strictest confidence and shall not be disclosed or required to be disclosed to any person or entity outside of COLAP, unless such disclosure is authorized by the member of the legal profession to whom it relates. Such information and actions shall be excluded as evidence in any complaint, investigation or proceeding before the Supreme Court Attorney Regulation Committee, the Presiding Disciplinary Judge of the Supreme Court, or the Colorado Supreme Court.

(b) COLAP employees, and volunteers recruited under this rule shall be deemed to be participating in a lawyer’s peer assistance program approved by the Colorado Supreme Court as provided in Colo. RPC 8.3(c).

(7) Immunity.

(a) Any person reporting information to COLAP employees or agents including volunteers recruited under rule 254 shall be entitled to the immunities and presumptions under C.R.C.P. 251.32(e).

(b) COLAP members, employees and agents including volunteers recruited under rule 254 shall be entitled to the immunities and presumptions under C.R.C.P. 251.32(e).

(c) COLAP members, employees and agents including volunteers recruited under rule are relieved of the duty of disclosure of information to authorities as imposed by Rule 8.3(a).

Amended and Adopted by the Court, En Banc, June 16, 2011, effective immediately.

By the Court:

Nathan B. Coats, Justice
Colorado Supreme Court
Monica M. Márquez, Justice
  Colorado Supreme Court


  Corrective Order to Rule Change 2011(10)
Colorado Rules of Civil Procedure
Rule 226. Legal Aid Dispensaries; Law Students Practice [Repealed]
Adopted

This corrective order corrects the omission of the repeal of Rule 226:

Rule 226. Legal Aid Dispensaries; Law Students Practice
[Repealed]

Corrective order is Adopted by the Court, En Banc, July 12, 2011, nunc pro tunc June 16, 2011, effective immediately.

By the Court:

Nathan B. Coats, Justice
Colorado Supreme Court
Monica M. Márquez, Justice
Colorado Supreme Court


Colorado Judicial Department
Chief Justice of the Supreme Court Directives

Notice of Availability

Chief Justice Directives (CJDs) are available online at www.courts.state.co.us/Courts/Supreme_Court/Directives/Index.cfm. The website lists CJDs by date and allows users to search by topic. Hard copies of the CJDs are available for $.25 per page (approximately $125 for a full set) and may be obtained by contacting the Colorado Office of the State Court Administrator, 1301 Pennsylvania St., Ste. 300, Denver, CO 80203.

Publication in The Colorado Lawyer

CJDs will be published on a space-available basis in this "Court Business" section of The Colorado Lawyer. Attachments may be omitted for space reasons. To obtain a copy of attachments, contact: Court Services Division, Colorado Office of the State Court Administrator, 1301 Pennsylvania St., Ste. 300, Denver, CO 80203; or visit www.courts.state.co.us/Courts/Supreme_Court/Directives/Index.cfm.

____________________________

CJD 06-03
Concerning Language Interpreters and Access to the Courts by
Persons With Limited English Proficiency
Amended

This directive was created to establish policies regarding the utilization and payment of language interpreters provided and arranged for by the Colorado state courts and to govern access to court proceedings and court operations by persons with limited English proficiency.

I. DEFINITIONS

I.A. Authorized Interpreter—A certified, professionally qualified or registered language interpreter who is approved by the CIP to work as an independent contractor or as a classified employee, and is listed on an active roster maintained by the CIP and made available according to CIP guidelines.

I.B. Bilingual Staff—An employee of the Colorado Judicial Department other than a classified staff language interpreter who has demonstrated proficiency in English and a second language in accordance with standards set by the CIP and is authorized by the CIP to conduct court operations business directly with limited English proficient persons in a language other than English.

I.C. Classified Staff Language Interpreter—An employee whose employment is governed by the Colorado Judicial System Personnel Rules and whose job classification falls within the Department’s classification and compensation plan.

I.D. Court Operations—Offices of the courts, services, and programs managed or conducted by the courts and probation, not including court proceedings, which involve contact with the public or parties in interest.

I.E. Court Proceeding—Any hearing, trial or other appearance before any Colorado state court in an action, appeal, or other proceeding, including any matter conducted by a judicial officer.

I.F. Independent Contract Language Interpreter—An authorized language interpreter who is an independent contractor pursuant to contract or as defined by IRS Revenue ruling 87-41.

I.G. Interpretation—The accurate and complete transfer of an oral message from one language to another in real time.

I.H. Judicial Officer—A justice, judge, magistrate, or water referee authorized to preside over a court proceeding.

I.I. Language Services—The facilitation of access to court services through the assistance of an interpreter, bilingual staff, or by means of translation.

I.J. Limited English Proficient ("LEP")—Individuals who do not speak English as their primary language and who have a limited ability to read, speak, write, or understand English.

I.K. Party in Interest—A party to a case; a victim; a witness; the parent, legal guardian, or custodian of a minor party; and the legal guardian or custodian of an adult party.

I.L. Professionally Certified Interpreter—A language interpreter who meets minimum professional competency standards, has achieved a passing score on an oral certification exam for interpreters recognized by the Colorado Judicial Department, and is listed on the active professionally certified interpreter roster maintained by the CIP and posted on the Colorado Judicial website.

I.M. Professionally Qualified Interpreter—A language interpreter who has not achieved certification but has met training and minimum oral certification exam score requirements to be considered for court interpreting assignments when a professionally certified interpreter is not available. Professionally qualified interpreters are listed on the active professionally qualified interpreter roster maintained by the CIP.

I.N. Registered Interpreter—An authorized language interpreter who is neither professionally certified nor professionally qualified. Certification may or may not be available in this interpreter’s language combination(s).

I.O. Remote Interpreting—A process in which an interpreter assists in a court proceeding or court operation without being physically present through the use of audiovisual hardware and/or software.

I.P. Translation—The accurate and complete transfer of a written message from one language to another that may take place over time.

I.Q. Victim—Any person who is a victim of an alleged criminal act; such person’s designee, legal guardian, caretaker, or surviving immediate family member if such person is deceased; and the parent, legal guardian, or caretaker if such person is a minor or incapacitated.

II. APPOINTMENT OF LANGUAGE INTERPRETERS

II.A. Court Proceedings—Consistent with Title VI of the Civil Rights Act of 1964 ("Title VI"), the Omnibus Crime Control and Safe Streets Act of 1968 ("Safe Streets Act"), Executive Order 13166, 65 Fed. Reg. 50121 (August 16, 2000), the courts shall assign and pay for language interpretation for all parties in interest during or ancillary to a court proceeding, including:

1. Facilitation of communication outside of the judicial officer’s presence in order to allow a court proceeding to continue as scheduled, including pre-trial conferences between defendants and district attorneys in order to relay a plea offer immediately prior to a court appearance or to discuss a continuance;

2. Facilitation of communication between client and state funded counsel appointed pursuant to Chief Justice Directives 04-04 and 04-05;

3. Facilitation of communication with parties in interest in court mandated programs including without limitation family court facilitations and mediations; and

4. Completion of evaluations and investigations ordered by and performed for the purpose of aiding the court in making a determination.

II.B. Non-Parties in Interest—The court may, at its discretion, provide and pay for language interpretation for limited English proficient persons other than parties in interest directly impacted by a court proceeding.

II.C. Court Operations—Court personnel shall provide access to language services for persons with limited English proficiency who seek access to court operations as defined in this directive, through the use of bilingual staff or authorized language interpreters appearing either in person or by way of remote interpreting. Language services shall be consistent with CIP standards that account for the nature, means, importance, and duration of the communication.

II.D. Communications beyond the Scope of Section II.A and II.B. of this Directive—Except as provided in Section II.A, the court shall not arrange, provide or pay for language interpretation during or ancillary to a court proceeding to facilitate communication with attorneys, prosecutors, or other parties related to a case involving LEP individuals for the purpose of gathering background information, investigation, trial preparation, witness interviews, or client representation at a future proceeding; for communications relating to probation treatment services; or for any other communication which is not part of a court proceeding or ancillary thereto as delineated in Section II.A. Prosecutors and parties’ attorneys are expected to arrange for language interpretation for case preparation and general communication with parties outside of court proceedings at their own expense, except as provided in CJD 04-04 and 04-05.

II.E. Authorized Interpreters—The court shall only pay for the services of authorized language interpreters that have been assigned by the CIP or designees.

III. ALLOCATION OF STAFF INTERPRETERS

The State Court Administrator’s Office shall be responsible for the allocation of classified staff language interpreters to judicial districts in accordance with the CIP’s FTE Allocation Plan Corresponding to Language Interpreters. Unless approved in advance by the State Court Administrator, effective 7/1/11 all newly hired interpreters in classified positions shall be professionally certified. Additional non-judicial employee contract interpreters may be hired as needed on an independent contract basis utilizing the contract form Agreement for Independent Contractor - Language Interpreter.

IV. QUALIFICATIONS OF LANGUAGE INTERPRETERS

IV.A. The court shall not permit any person other than an authorized language interpreter to function as a language interpreter in any court proceeding or operation, regardless of the source by which the interpreter is compensated or the manner by which the interpreter appears.

IV.B. The CIP shall determine which interpreters are professionally certified, professionally qualified, or registered. The CIP shall maintain current rosters of all authorized interpreters including their level of qualification and availability. The CIP shall ensure that current rosters are readily available to the court and the public. Interpreters shall sign an acknowledgment regarding their obligations under CJD 05-05, the Continuing Education and Professional Practice Policy for Interpreters as a condition of approval.

IV.C. The court shall use its allocated professionally certified classified staff language interpreters when available in the required language for all court proceedings. When certified classified staff is not available, the CIP shall assign authorized independent contract language interpreters either in person or by remote interpreting as follows:

1. Courts where 5 or more professionally certified interpreters in the required language reside within a 25 mile radius of the courthouse shall use professionally certified language interpreters in all proceedings requiring interpretation in that language.

2. All other courts shall use professionally certified interpreters during all class 1 felony proceedings, provided that a professionally certified interpreter in the required language resides or does business in Colorado.

3. In all other proceedings, the court shall use a professionally certified interpreter if one is available, authorized to work in the local jurisdiction, and has not been disqualified according to section X of this directive.

4. When a professionally certified interpreter is not available, the court may use an interpreter listed on the roster of active professionally qualified interpreters maintained by the CIP.

5. If no professionally certified or professionally qualified language interpreter is available, the court may use a registered interpreter.

V. ASSIGNMENT OF MORE THAN ONE LANGUAGE INTEPRETER

V.A.Absent exigent circumstances, the court shall assign and pay for two or more interpreters during the following types of proceedings to prevent interpreter fatigue and the concomitant loss of accuracy in interpretation:

1. Proceedings scheduled to last 2 hours or longer.

2. Proceedings with multiple LEP parties in interest requiring interpretation when attorney-client consultation during a hearing is paramount (e.g., witness testimony, motions).

3. Proceedings in which multiple languages are involved.

V.B. The following guidelines and limitations apply to the utilization of more than one interpreter:

1. The use of electronic simultaneous interpreting equipment is encouraged as best practice in all cases, particularly in proceedings exceeding two hours in length with multiple LEP parties in interest. Its use is also encouraged to allow victims and parents or guardians to be present at interpreted proceedings without the need for an additional interpreter.

2. In proceedings with multiple LEP parties in interest requiring interpretation in one language, the interpreter not actively involved in providing simultaneous interpretation may be used to facilitate attorney-client communication when needed.

3. If language interpretation is required for witness testimony in a proceeding with multiple LEP parties in interest, a third interpreter may be provided by the court for that purpose.

4. Interpreters are bound by an oath of confidentiality and impartiality, and serve as officers of the court; therefore, the use of one interpreter by more than one party in interest in a case is permitted.

5. The court is not obligated to appoint a different language interpreter when an interpreter has previously interpreted during a court proceeding for another party in a case.

6. Any party in interest may provide and arrange for interpretation services to facilitate attorney-client communication or otherwise assist the party in interest if interpretation services exceeding those provided by the court are desired.

VII. REMOTE INTERPRETING

VII.A. Remote interpreting, including telephonic and audiovisual interpretation, may be utilized to facilitate access to the courts by persons with limited English proficiency subject to the conditions stated herein.

VII.B. A language interpreter that appears remotely must be authorized and subject to all other standards set forth in this Directive and shall be assigned in accordance with section IV.C. In the event that an authorized interpreter is not available for a time sensitive, non-evidentiary proceeding expected to last no more than thirty minutes, approved remote interpreter providers may be used to supply an interpreter in accordance with CIP standards.

VII.C. The court may utilize remote interpreting only as authorized by the judicial officer for those categories of proceedings as specified by the CIP.

VII.D. The court shall ensure that the remote interpreting complies with CIP standards, including standards for confidential communication, allows the official, parties, attorneys and witnesses to hear each other and the interpreter clearly, and is able to be clearly recorded.

VIII. TRANSLATIONS

The translations of forms commonly used in court proceedings, non-English written statements provided to the court, signage required in courthouses, and any other written communication required in the courts will be completed in accordance with the CIP’s Translation Policy.

IX. PAYMENT OF COURT INTERPRETERS AND TRANSLATORS

The payment of independent contract language interpreters and translators will be in accordance with the Court Interpreter Program Fiscal Policy. No judicial officer or court personnel shall assess costs for services rendered pursuant to this directive to a party in interest nor require reimbursement to the court or the state for such costs from a party in interest.

X. DISQUALIFICATION OF A LANGUAGE INTERPRETER

X.A. A judicial official shall disqualify a language interpreter from a proceeding and CIP shall disqualify a language interpreter from interpreting in a court operations assignment whenever the interpreter:

1. Is unable effectively to communicate with court personnel, parties in interest, or other participants, including cases in which the interpreter self-reports such inability;

2. Has a conflict of interest due to a relationship with a person involved in the matter or an interest in the outcome;

3. Is acting in violation of the Code of Professional Responsibility for Court Interpreters; or

4. Is no longer qualified to interpret in the assigned proceeding or court operation as a result of a change in certification, status or qualifications or of action taken pursuant to the Court Interpreter Disciplinary Policy.

X.B. The judicial official shall promptly notify the CIP whenever a language interpreter is disqualified from a proceeding and explain the reason for the disqualification.

X.C. Whenever a judicial official or the CIP disqualifies an interpreter, the court shall provide a replacement language interpreter.

XI. COMPLAINT PROCESS

Any person aggrieved by an alleged violation of this directive may file a complaint with the local court administrative office who shall forward the complaint to the Court Interpreter Program Administrator (CIPA) for investigation. The CIPA shall inform the corresponding District Administrator and Managing Interpreter of the complaint. The CIPA shall conclude the investigation and render a decision within 30 days of the filing of the complaint. Nothing herein shall be construed to bar a judicial officer from enforcing the directive during a proceeding or in any subsequent review of the proceeding in which a violation has occurred. The local Managing Interpreter shall make complaint forms available in all courthouses.

XII. ROLES AND RESPONSIBILITIES FOR ENSURING ACCESS

XII.A. All Judicial Officers shall ensure that the requirements of this Directive are enforced in any proceeding.

XII.B. The State Court Administrator or designee shall, consistent with state rules and the further direction of the Chief Justice, establish and manage uniform state requirements as to language data that court personnel should gather from parties in interest and court staff when cases are filed, and as to affording notice to all parties in interest as to the availability of language services.

XII.C. The District Administrator or designee shall, consistent with state requirements, manage the provision of language access to the courts by LEP individuals in a district, gather language needs information from parties in interest and court personnel according to CIP standards, schedule and coordinate language interpreter services for all court proceedings, and facilitate language access to all other court operations.

XII.D. The Chief Probation Officer or designee shall manage the provision of language access to probation services by LEP individuals in each judicial district.

XII.E. The CIPA shall make available to the court, court staff, interpreters and the public the policies and procedures related to the provision of language access in the Colorado state courts. These policies and procedures include, but are not limited to, those related to language access plans, translations, remote interpreting, and the interpretation of sound files in a court proceeding.

XII.F. To facilitate the use of the most qualified language interpreter available, the CIPA shall oversee the training and testing of language interpreters and post rosters on the Colorado CIP website of active status authorized interpreters.

XII.G. To assist all judicial districts in their task of providing access to the courts and probation services by LEP individuals, the CIPA shall post on the Colorado Judicial Department’s official website professional translations of forms frequently used by the courts and probation as they become available.

XII.H. To facilitate access to the courts and probation services by LEP individuals, the local managing interpreter shall, consistent with state policy, ensure that signs are posted regarding availability of interpreter services in English and those languages most commonly requiring interpretation and that all LEP individuals are afforded notice of the availability of interpreter services when a case is commenced, or otherwise reasonably in advance of any appearance or pleading deadline.

Amended effective July 1, 2011, and signed this 28th day of June 2011.

Michael L. Bender, Chief Justice
Colorado Supreme Court

___________________________

CJD 04-04
Appointment of State-Funded Counsel in
Criminal and Juvenile Delinquency Cases and for
Contempt of Court
Amended and Adopted

I. Statutory Authority

A. The federal and state constitutions provide that an accused person has the right to be represented by counsel in criminal prosecutions. This constitutional right has been interpreted to mean that counsel will be provided at state expense for indigent persons in all cases in which actual incarceration is a likely penalty, unless incarceration is specifically waived as a sentencing option pursuant to § 16-5-501, C.R.S., or Alabama v. Shelton, 535 U.S. 654 (2002), or there is a waiver of the right to counsel at the advisement.

B. State funds are appropriated to the Office of the Public Defender to provide for the representation of indigent persons in criminal and juvenile delinquency cases pursuant to § 21-1-103, C.R.S.

C. State funds are appropriated to the Office of Alternate Defense Counsel to provide for the representation of indigent persons in criminal and juvenile delinquency cases in which the Public Defender declares a conflict of interest pursuant to § 21-2-101, C.R.S.

D. Section 19-2-706(2), C.R.S., provides for the representation of juveniles in delinquency cases in which (1) the parent or legal guardian refuses to retain counsel for the juvenile, or (2) the court finds such representation is necessary to protect the interest of the juvenile or other parties involved in the case. When such an appointment is necessary and the juvenile does not qualify for representation by the Public Defender or the Office of Alternate Defense Counsel, the Judicial Department will pay for the costs of counsel and investigator services. However, reimbursement to the state may be ordered, as outlined in this directive.

E. Colorado Rules of Civil Procedure 107 and 407 provide for the appointment of counsel to an indigent person cited for contempt where a jail sentence is contemplated. If the court appoints private counsel to prosecute a contempt action or to represent an indigent party for contempt charges, the Judicial Department will pay for counsel, as there is no statutory authority for the Public Defender or the Alternate Defense Counsel to represent clients for the sole purpose of addressing contempt charges.

II. Indigency Determination

A. A defendant in a criminal case or a juvenile’s parent or legal guardian in a delinquency case must be indigent to be represented by the Public Defender or by Alternate Defense Counsel, in cases of Public Defender conflict, at state expense. Such person(s) must also be indigent or otherwise qualify for court-appointed counsel as described in Section III for the court to authorize the payment of certain costs/expenses. Any defendant in a criminal case, or the juvenile’s parent, guardian, or legal custodian in a delinquency case, requesting court-appointed representation on the basis of indigency must complete Form JDF208, Application for Public Defender, Court-Appointed Counsel or Guardian ad Litem, signed under oath.

B. An indigent person is one whose financial circumstances prevent the person from having equal access to the legal process (Attachments A, B, and C).

C. Pursuant to § 21-1-103 (3), C.R.S., the initial determination of indigency shall be made by the Public Defender subject to review by the court. Therefore, all persons seeking court-appointed representation shall complete form JDF208 and shall first apply with the Office of the Public Defender. The Public Defender will determine if the defendant, or a juvenile’s parent or legal guardian in a delinquency case, is eligible for representation in accordance with the fiscal standards.

D. In all cases, the court retains jurisdiction to determine whether the person is indigent based on all the information available. Upon receipt of the finding by the Public Defender on the issue of eligibility for representation in accordance with the fiscal standards, the court shall review the person’s application for Public Defender, including any requests for exception to the determination of the Public Defender. Based on a review of all information available, the court shall enter an order either granting or denying the person’s request for appointment of the public defender. The court may use the judicial district’s Collections Investigator(s) to provide a recommendation to the court relative to the above determinations, if additional analysis is needed.

E. If the court finds the person indigent and appoints the Public Defender, or in the case of a conflict, the Alternate Defense Counsel, the court may consider ordering the person to make reimbursement in whole or in part to the State of Colorado pursuant to law using the process described in Section V. of this Chief Justice Directive.

F. An attorney or other person appointed by the court on the basis of one or more party’s inability to pay the costs of the appointment shall provide timely notice to the court in the event financial related information is discovered that would reasonably call into question the party’s inability to pay such costs. The court shall have the discretion to reassess indigence, and for purposes of possible reimbursement to the state, the provisions of Section V. of this Chief Justice Directive shall apply. Based upon a reassessment of a party’s financial circumstances, the court may terminate a state-paid appointment, require reimbursement to the State of Colorado of all or part of the costs incurred or to be incurred, or continue the appointment in its current pay status.

III. Guidelines for Appointment of Counsel

A. Appointment of Public Defender

1. Appointments on the Basis of Indigency: To be eligible for representation by the Public Defender (PD), a defendant, or a juvenile’s parent or legal guardian in a delinquency case, must be indigent, as defined above and determined by the PD, subject to review by the court. If such person is indigent, the court shall appoint the PD, except as otherwise provided in paragraph III.B.

2. Appointments To Assist in Motions Under Rule 35 of the Colorado Rules of Criminal Procedure: An indigent defendant may be entitled to representation by the PD to assist in motions under Rule 35 if the court does not deny the motion under Crim. P. 35(c)(3)(IV). If another attorney represents the defendant and withdraws, the PD may be appointed if the defendant is indigent and there is no conflict with such representation.

3. Appointments for Appeals:

a. The court or the PD shall reassess the indigency status of a defendant who requests court-appointed counsel, as described in Section II.A., for purposes of appeal.

b. When an indigent person has an Alternate Defense Counsel attorney for the trial of a criminal or delinquency case, the PD shall be appointed to represent the defendant on appeal unless the court determines that the PD has a conflict of interest.

B. Appointment of Alternate Defense Counsel

The Office of Alternate Defense Counsel (OADC) shall maintain a list of qualified attorneys for use by the courts in making appointments. Upon appointment of an Alternate Defense Counsel attorney, the clerk shall notify the OADC’s designee. No more than one attorney may be appointed as counsel for an indigent person except in specific exceptional circumstances. Accordingly, upon specific written request by counsel for appointment of an additional attorney to assist in the defense of an indigent person, the OADC may approve appointment of an additional attorney for good cause shown. Such requests should be made in writing and directed to the OADC. Alternate Defense Counsel shall be appointed under the following circumstances:

1. Conflict-of-Interest Appointments: The PD shall file a motion or otherwise notify the court to withdraw in all cases in which a conflict of interest exists. The court shall appoint an Alternate Defense Counsel attorney to represent indigent persons in cases in which the court determines that the PD has a conflict of interest and removes the PD from the case. The OADC is responsible by statute to handle all PD conflict cases. Therefore, the OADC shall establish policies and procedures to cover instances when Alternate Defense Counsel has a conflict.

2. Appointments To Assist in Motions Under Rule 35 of the Colorado Rules of Criminal Procedure: An indigent defendant may be entitled to conflict-free counsel to assist in motions under Rule 35 if the court does not deny the motion under Crim. P. 35(c)(3)(IV) and if the PD notifies the court that a conflict of interest exists. The provisions of III.B.1. above shall be followed in appointing an Alternate Defense Counsel attorney.

3. Appointments for Appeals: If the court determines that the PD has a conflict of interest, it shall set forth in a written order the reason for the conflict of interest and the court shall appoint an Alternate Defense Counsel attorney to represent the defendant.

C. Appointment of Other Counsel

1. The Clerk of Court or the District Administrator shall maintain a list of qualified private attorneys from which appointments shall be made under this section. Private counsel appointed under the following circumstances will be paid by the Judicial Department as established in this directive:

a. Exceptional Circumstances: Counsel in Juvenile Delinquency Cases if Parties are Not Indigent: The parents/legal guardians of juveniles are routinely expected to retain and pay for their own private counsel. Upon any request that the State of Colorado / Judicial Department pay counsel fees and costs, the initial determination shall be whether the party(ies) are indigent, and if so, the Public Defender or ADC shall be appointed, as described above. If the juvenile and parents/guardians are not indigent, the court may appoint counsel in a juvenile delinquency case with consideration for the following:

i. Counsel may be appointed if the court deems representation by counsel is necessary to protect the interests of the juvenile or of other parties or if the parent or guardian refuses to retain counsel, pursuant to § 19-2-706(2), C.R.S.

ii. If such appointment is made by the court and the juvenile and parents/guardians are not indigent (and therefore not eligible for representation by the Public Defender or ADC), the court shall order the parent or guardian to reimburse the court for the costs of counsel and if applicable, investigator appointment.

iii. The court may waive the requirement that the parent/guardian reimburse the costs of representation if the court finds good cause for the refusal to retain counsel, such as when a family member is alleged to be the victim of the juvenile’s actions.

b. Appointments of Advisory Counsel: There is no constitutional right to the appointment of advisory counsel to assist a pro se defendant. However, pursuant to case law, the court may appoint private advisory counsel either (1) at the request of an indigent pro se defendant, or (2) over the objections of an indigent pro se defendant to ensure orderly proceedings and to provide assistance to the defendant. If the court appoints private advisory counsel for an indigent pro se defendant in a criminal case, the Judicial Department will pay for counsel, as there is no statutory authority for the Public Defender or the Alternate Defense Counsel to advise pro se defendants.

c. Appointments of Contempt Counsel: Private counsel may be appointed as a special prosecutor or as counsel for an indigent person facing contempt charges when punitive sanctions may be imposed, in accordance with Rule 107(d) and 407(d) of the Colorado Rules of Civil Procedure. Costs and reasonable attorney’s fees in connection with the contempt proceeding may be assessed at the discretion of the court.

d. Appointments of Counsel for Grand Jury Witnesses: A witness subpoenaed to appear and testify before a grand jury is entitled to assistance of counsel pursuant to § 16-5-204, C.R.S. For any person financially unable to obtain adequate assistance, counsel may be appointed at state expense. Pursuant to case law, no attorney who provides counsel in the grand jury room may represent more than one witness in a single investigation without grand jury permission. If the court appoints counsel for an indigent witness before a grand jury, the Judicial Department will pay for counsel, as there is no statutory authority for the Public Defender or the Alternate Defense Counsel to represent grand jury witnesses.

e. Appointments of Counsel for Witnesses: An indigent witness subpoenaed to appear and testify in a court hearing may be appointed counsel if the witness requests counsel and the judge determines the appointment of counsel is necessary to assist the witness in asserting his or her privilege against self-incrimination. If the court appoints counsel for an indigent witness for this purpose, the Judicial Department will pay for counsel, as there is no statutory authority for the Public Defender or the Alternate Defense Counsel to represent a witness.

2. For appointments under this section, the appointing judge or magistrate shall, to the extent practical and subject to attorney-client privilege, monitor the actions of the appointee to ensure compliance with the duties and scope specified in the order of appointment.

3. Attorneys appointed under this section shall notify the State Court Administrator, in writing, within five (5) days of any malpractice suit or grievance brought against them.

4. Appointees shall maintain adequate professional liability insurance for all work performed. In addition, appointees shall notify the State Court Administrator, in writing, within five (5) days if they cease to be covered by said liability insurance and shall not accept court appointments until coverage is reinstated.

IV. Guidelines for Payment

A. Public Defender Costs

The Public Defender’s Office has attorneys on staff (Deputy Public Defenders) to accept appointments. Court costs and other expenses incurred by the Public Defender shall be billed to the Public Defender’s Office in accordance with that office’s policies and procedures.

B. Office of Alternate Defense Counsel Costs

Claims for payment of counsel and investigator fees and expenses shall be filed with the OADC. A schedule of maximum hourly rates and maximum total fees for OADC state-funded counsel and investigators is shown in Attachment D (1). Court costs incurred by Alternate Defense Counsel attorneys and investigators shall be billed to the OADC in accordance with that office’s policies and procedures.

C. Other Court-Appointee’s Costs

The fees and costs associated with appointments described under section III. C. shall be paid by the Judicial Department as follows:

1. Fees and Expenses: Appointments may be made by the courts on an non-contract hourly fee basis or contract basis as set forth by the State Court Administrator’s Office. A schedule of maximum hourly rates and maximum total fees for state-funded counsel and investigators is shown in Attachment D (2). Upon appointment of counsel or other appointee, court staff shall enter the appointment in the ICON/Eclipse computer system and complete the appointment on the CAC system for payment and tracking purposes. Claims for payment on hourly appointments shall be entered in the Department’s Internet-based payment system (CACS); or, if the Financial Services Division of the State Court Administrator’s Office has granted the appointee an exception to the requirement to invoice using CACS, claims for payment shall be filed with the District Administrator in the respective judicial district on the Request and Authorization for Payment of Fees (form JDF207). Claims for payment on flat-fee, contract appointments shall be entered in the Department’s Internet-based payment system (CACS); or, if the Financial Services Division of the State Court Administrator’s Office has granted the appointee an exception to the requirement to invoice using CACS, such claims for payment shall be filed with the State Court Administrator’s Office using the process and format required by that office. All requests for hourly payment must be in compliance with Guidelines for Payment of Court-Appointed Counsel and Investigators Paid by the Judicial Department for Itemized Fees and Expenses on an Hourly Basis (Attachment E) and shall follow the Court-Appointed Counsel and Investigators Procedures for Payment of Fees and Expenses (Attachment F). All hourly payment requests shall be reviewed by the District Administrator or his/her designee to ensure that all charges are appropriate and in compliance with this directive and applicable fiscal policies and procedures, before authorizing the request. The Office of the State Court Administrator may review, verify, and revise, when appropriate, authorizations for payment. All incomplete or erroneous claims will be returned to the attorney or investigator with an explanation concerning the issue(s) identified.

2. Court Costs, Expert Witness Fees, and Related Expenses: Costs incurred by counsel shall be pre-approved, billed to and paid by the appointing court. Court costs include such items as: expert and standard witness fees and expenses, service of process, language interpreter fees, mental health examinations, transcripts, and discovery costs. Payment of all court costs shall be in accordance with applicable statutes, Chief Justice Directives, and other policies and procedures of the Judicial Department, including the Mandated Costs chapter of the Judicial Department’s Fiscal Policies and Procedures manual. Out-of-state investigation travel expenses incurred by the appointee must be accompanied by appropriate travel receipts.

3. Investigator Appointments: If a court appointed attorney paid by the Judicial Department requires the services of an investigator, he or she shall submit a motion to the court requesting authority to hire an investigator. The court shall authorize such appointments as the judge or magistrate deems necessary, and shall issue an order authorizing the amount of investigator fees and expenses that may be incurred, not to exceed the maximum fees set forth in Attachment D (2). The Judicial Department shall pay for investigator services under these circumstances.

4. Online Appointee Billing: Appointees shall invoice the Judicial Department using the Department’s Internet-based system (CACS) according to the policies and procedures set forth by the State Court Administrator’s Office. An appointee may request an exception to this requirement by contacting the Financial Services Division at the State Court Administrator’s Office. In the request, the appointee shall describe the extenuating circumstances preventing the use of CACS for invoicing. The Director of Financial Services or his/her designee shall review such requests and shall have final decision authority concerning the granting or denial of the request. Failure of an appointee to learn or avail him/herself of training on the use of CACS is not sufficient cause to warrant an exception.

5. To maintain the security and integrity of CACS, appointees shall immediately notify the Director of Financial Services, or his/her designee, in writing, of any changes in appointee’s staffing or practice that may require cancellation or other changes in the CACS login authority or credentials of appointee or appointee’s staff.

6. Failure of appointee to appropriately use CACS shall be sufficient grounds for denial of payment and may result in removal from consideration for future appointments.

D. Court Costs, Expert Witness Fees and Investigator Fees of an Indigent Party who is Not Appointed Counsel

1. In certain circumstances, a defendant’s court costs, expert witness fees, and/or investigator fees may be paid by the Judicial Department even though the defendant is not being represented by state-funded counsel (i.e., Public Defender; Alternate Defense Counsel; Judicial-paid counsel). Payment by the local court is appropriate if any of the following statements apply:

a. The defendant is indigent and proceeding pro se;

b. The defendant is indigent and receiving pro bono, private counsel;

c. The defendant is receiving private counsel but becomes indigent during the course of the case, and the court has determined that the defendant lacks sufficient funds to pay for court costs, and that it would be too disruptive to the proceedings to assign the Public Defender or Alternate Defense Counsel to the case.

2. Court costs include such items as: expert and standard witness fees and expenses, service of process, language interpreter fees, mental health examinations, transcripts, and discovery costs. An investigator appointed by the court under this section shall be paid in accordance with the rates and maximum fees established in Attachment D(2). A motion requesting authorization to hire an investigator, to pay court costs, or for expert witness fees shall be submitted to the court. The Court shall authorize such appointments or payments as the judge or magistrate deems necessary, and shall issue an order authorizing the amount of the costs, fees and expenses that may be incurred under this section. For maximum rates for payment of expert witnesses, see CJD 87-01, as amended.

E.In instances in which fees for activity such as travel time, waiting time, and mileage expenses were incurred simultaneously for more than one court appointment, appointees shall apportion the fees or expenses across cases, as applicable. (For example, traveling to/from court would be billed 50% on the client A appointment and 50% on the client B appointment if the appointee made one trip to cover both clients’ hearings.)

V. Reimbursement to the State

A. If the court determines, at any time before, during the course of the appointment (at the court’s discretion if questions concerning indigence arise), or after the appointment of state-funded counsel, that the person has the ability to pay all or a part of the expenses for representation including related, ancillary costs, the court shall enter a written order that the person reimburse all or a part of said expenses and inform the responsible party of this obligation. Such order shall constitute a final judgment including costs of collection, and may be collected by the state in any manner authorized by law. The court’s financial review concerning ability to pay counsel fees and costs may be accomplished with the use of the judicial district’s Collections Investigator. If the defendant is placed on probation, the court may require payment for the costs of representation as one of the conditions of probation.

B. If the court appoints counsel for a juvenile in a delinquency case because of the refusal of a non-indigent parent, guardian, or other legal custodian to retain counsel for the juvenile, the court shall order the responsible party(ies) (unless the county department of social services or the Department of Human Services is the responsible party) to reimburse the state for the costs of counsel unless the court finds there is good cause for the refusal to retain counsel pursuant to § 19-2-706(2)(b), C.R.S.

C. Collection of fees and costs related to court-appointed representation may be referred to the Collections Investigator or a private collector that has an agreement for such collection services with the State Court Administrator’s Office.

D. Costs for representation provided may be assessed against the responsible party(ies) at the fixed hourly rate for state-funded private counsel, at the state-funded counsel flat fee rate, or at the hourly cost of providing legal representation by the Public Defender or Alternate Defense Counsel for the number of hours reported by counsel to the court. Other costs incurred for the purposes of prosecution of the case may also be assessed including, for example, costs for transcripts, witness fees and expenses, and costs for service of process. In addition, the responsible party(ies) may be required to pay costs of collection. Costs incurred for accommodations required under the Americans with Disabilities Act, such as hearing interpreter fees, may not be assessed.

VI. Complaints

A. All written complaints and documentation of verbal complaints regarding the performance of any state-paid counsel shall be submitted to the District Administrator.

B. All complaints shall be referred by the District Administrator to the appropriate agency or person. Public Defender complaints shall be submitted to the Public Defender’s Office. Complaints against an Alternate Defense Counsel attorney shall be submitted to the Alternate Defense Counsel Office. The District Administrator will forward all other complaints to the presiding judge or, if appropriate, the Chief Judge of the district unless a conflict exists due to the judge’s involvement in a pending case. If a conflict exists, the District Administrator will forward the complaint to another judge designated for that purpose.

C. If the complaint involves an attorney and the reviewing judge or District Administrator determines that the person may have violated the Colorado Rules of Professional Conduct, the information shall be filed with the Colorado Supreme Court Office of Attorney Regulation Counsel. The Regulation Counsel shall advise the reporting judge or District Administrator and the State Court Administrator of the final outcome of the investigation.

D. Copies of all written complaints and documentation of verbal complaints regarding state-paid counsel shall be forwarded by the District Administrator to the State Court Administrator’s Office. The State Court Administrator may investigate a complaint and take action he/she believes is necessary to resolve any concerns or issues raised by the complaint. Such action may include, but is not limited to, terminating the contract with the attorney.

VII. Sanctions

A. All contracts with the Judicial Department for appointments addressed in this Chief Justice Directive shall include a provision requiring compliance with this Chief Justice Directive. Failure to comply with this Directive may result in termination of the contract and/or removal from the appointment list.

B. Judges and Magistrates shall notify appointees that acceptance of the appointment requires compliance with this Directive, and that failure to comply may result in termination of the current appointment and/or removal from the appointment list.

CJD 04-04 is amended and adopted effective July 1, 2011.

Done at Denver, Colorado this 28th day of June 2011.

Michael L. Bender, Chief Justice
Colorado Supreme Court

___________________________

CJD 04-05
Appointment and Payment Procedures for Court Appointed Counsel
Pursuant to Titles 12, 13, 14, 15, 19 (Dependency and Neglect Only),
22, 27, and Guardians ad Litem, Child and Family Investigators, and
Court Visitors Paid by the State Court Administrator’s Office
Amended

This policy is adopted to assist the administration of justice with respect to the following appointments:

  • Appointment of counsel for children and adults under Titles 12, 13, 15, 19 (dependency and neglect only), 22, and 27;
  • Appointment and training of guardians ad litem and court visitors appointed on behalf of wards or impaired adults in all cases;
  • Appointment of non-attorney child and family investigators in the best interest of children pursuant to §14-10-116.5, C.R.S.

This policy does not cover appointments made pursuant to Titles 16 and 18, nor appointments of counsel in juvenile delinquency matters pursuant to Title 19, nor appointments of guardians ad litem for minors, attorney child and family investigators and child’s legal representatives (Office of the Child’s Representative (OCR) appointments). For information concerning criminal and juvenile delinquency appointments refer to Chief Justice Directive 04-04, and for state paid attorneys appointed in the best interest of children and paid by the OCR, refer to Chief Justice Directive 04-06.

I. Statutory Authority

A. he federal and state constitutions and various Colorado statutes provide authority for the appointment of counsel, guardians ad litem (GAL), child and family investigators, and court visitors in certain legal actions.

B. State funds are appropriated to the Judicial Department to provide for representation in dependency and neglect cases and in certain other cases in which the party represented, or the party’s parent or legal guardian, is determined to be indigent.

II. Eligibility Determination

A. The person for whom representation is requested or, in the case of children, the responsible party, must be indigent to qualify for court-appointed representation at state expense pursuant to Titles 14, 22, and 27 and for representation of respondents in a dependency and neglect action under Title 19. Such person(s) must also be indigent for the court to authorize payment of certain costs and expenses.

B. An indigent person is one whose financial circumstances fall within the fiscal standards set forth in Attachment A.

C. All persons requesting court-appointed representation to be paid by the state on the basis of indigency must complete, or have completed on their behalf, application form JDF208 ("Application for Public Defender, Court-Appointed Counsel or Guardian ad litem") signed under oath, before an appointment of counsel at state expense may be considered. Form JDF208 must be completed for the appointment of counsel at state expense in all cases except mental health cases under Title 27, guardianship and protective proceeding cases under Title 15 in which the respondent refuses to or is unable to supply the necessary information, cases in which a minor is requesting counsel for judicial bypass proceedings pursuant to § 12-37.5-107(2)(b), C.R.S. Pursuant to §13-90-208, C.R.S. a person who is deaf or hard of hearing may have access to counsel for advice on whether to execute a waiver of state funded interpreter services.

D. For appointments under Title 15 and some appointments under Title 27 where the court believes that the person needs the assistance of counsel and is unable to obtain counsel, the person for whom representation is requested or, in the case of children, the responsible party, need not be indigent to qualify for court-appointed representation at state expense.

E. If, in the best interests of justice, a tentative appointment of legal counsel or a guardian ad litem for the party is necessary, such appointment may be made pending a final decision regarding indigency. If a review of a person’s application shows that the person is not indigent and the person is not qualified to have court-appointed representation at state expense, the court may order the person to reimburse the state for any justifiable fees and expenses as a result of representation provided from a tentative appointment of legal counsel or a guardian ad litem.

F. An attorney or other person appointed by the court on the basis of one or more party’s inability to pay the costs of the appointment shall provide timely notice to the court in the event financial related information is discovered that would reasonably call into question the party’s inability to pay such costs. The court shall have the discretion to reassess indigence, and for purposes of possible reimbursement to the state, the provisions of Section V. of this Chief Justice Directive shall apply. Based upon a reassessment of a party’s financial circumstances, the court may terminate a state-paid appointment, require reimbursement to the State of Colorado of all or part of the costs incurred or to be incurred, or continue the appointment in its current pay status.

III. Guidelines for Appointment of Counsel, GAL (for Adults), Non-Attorney Child and Family Investigators and Court Visitors

The Clerk of Court or the District Administrator shall maintain a list of qualified persons from which appointments will be made under this section. The order of appointment shall specify:

  1. The authority under which the appointment is made;
  2. Reason(s) for the appointment;
  3. Scope of the duties to be performed; and
  4. Terms and method of compensation (including indigency status).

See Attachments B (form JDF209), and C (form JDF210).

A. Appointments of Counsel

Appointments may be made under flat fee or hourly contracts developed by the Judicial Department, or if necessary to meet the jurisdiction’s needs, on a non-contract hourly fee basis. Any attorney not under contract with the Department who requests appointments must submit to the Chief Judge a request with an affidavit of qualifications for such appointments. The Chief Judge, in his or her discretion, may approve additions to the list of non-contract attorneys at any time. An attorney not under contract with the Judicial Department must submit an updated affidavit to the chief judge every three years to ensure that he or she is maintaining his or her qualifications for such appointments. The judge or magistrate shall consider the number of an attorney’s active cases, the qualifications of the attorney, and the needs of the party to be represented when making appointments.

1. Appointment of Counsel for Respondent in Dependency and Neglect Proceedings: Counsel shall be appointed for an indigent parent or guardian in dependency and neglect proceedings as provided under Title 19.

2. Appointment of Counsel for Involuntary or Emergency Alcohol/Drug Commitment Proceedings: Counsel appointments to provide legal representation to eligible persons shall be in accordance with the provisions under Title 27, Articles 81 and 82, as amended.

3. Appointment of Counsel for Care and Treatment of Mentally Ill: Counsel appointments to provide legal representation to eligible persons shall be in accordance with the provisions under Title 27, Article 65, as amended.

4. Appointment of Counsel for Probate, Trusts, and Fiduciaries: Counsel appointments to provide legal representation to eligible persons shall be in accordance with provisions under Title 15, Article 14, as amended.

5. Appointment of Counsel for a Juvenile:

a. Counsel may be appointed for a child in a truancy matter under Title 22 if adjudication is previously entered and the child is served with a contempt citation or if the court deems representation by counsel necessary to protect the interests of the child or other parties. Parties requesting counsel must complete form JDF208 and a finding of indigence is required for the appointment of counsel at state expense. If the party is not qualified to have court-appointed representation at state expense, the court may order the responsible party(ies) to reimburse the state for any justifiable fees and expenses as a result of representation provided from a tentative appointment of legal counsel.

b. Counsel may be appointed for a minor under the judicial bypass provisions of the Colorado Parental Notification Act pursuant to §12-37.5-107(2)(b), C.R.S. and Chapter 23.5 of the Colorado Rules of Civil Procedure ("Rules of Procedure for Judicial Bypass of Parental Notification Requirements").

6. Appointment of Counsel for Appeals: The trial court shall determine the need and statutory requirement for appointment of counsel on appeal. The court shall be under no obligation to appoint counsel in appeals where the sole issue for determination is the individual allocation of parental responsibilities between and among two parents. Where applicable, determinations of indigency should be in accordance with the procedure described in section II. The maximum total fee allowable on an appeal shall be in accordance with the maximum fees outlined in section IV. D. Requests for payment shall be filed on Form JDF207 (Colorado Judicial Department Request and Authorization For Payment of Fees) with the appellate court and must contain a copy of the order appointing counsel to represent the indigent person on appeal. An appellate court judge, or designee, shall carefully review all requests for payment submitted to the court for approval.

7. Appointment of Counsel for a Person who is Deaf or Hard of Hearing: Pursuant to § 13-90-208, C.R.S., the right of a person who is deaf or hard of hearing to a qualified interpreter or auxiliary service may not be waived except in writing by the person who is deaf or hard of hearing. Prior to executing such a waiver, a person who is deaf or hard of hearing may have access to counsel for advice.

8. Appointment of Counsel in Other Cases: Indigent parties may request that the court appoint counsel in other cases for which there is not specific statutory authority. See In re C.A.O. for the adoption of G.M.R., 192 P.3d. 508 (Colo. App. 2008). The Judicial Department does not budget for non-statutorily required appointments. In an instance where the court finds constitutional authority for the appointment of counsel for an indigent party, a written order of appointment stating the grounds for appointment, citing legal authority, and certifying payment of counsel at the state rate is required.

B. Appointments of Guardians ad litem (for Adults), Non-Attorney Child and Family Investigators, and Court Visitors

The court may appoint a qualified person other than an attorney as a child and family investigator or court visitor when the appointment of an attorney is not mandated by statute. The court shall maintain a list of qualified persons to accept appointments as guardians ad litem, court visitors and non-attorney child and family investigators from which the court will make appointments.

1. Appointment of GAL in Dependency and Neglect Case: A guardian ad litem may be appointed pursuant to Title 19 for a parent or guardian in dependency and neglect proceedings who has been determined to be mentally ill or developmentally disabled, unless a conservator has been appointed.

2. Appointment of GAL in Trusts or Estates: In formal proceedings involving trusts or estates of decedents, protected persons, and in judicially supervised settlements pursuant to Title 15, a guardian ad litem may be appointed for an incapacitated person, unascertained person, or a person whose identity or address is unknown, if the court determines that a need for such representation exists.

3. Appointment of GAL in a Civil Suit: A guardian ad litem may be appointed for an incompetent person who does not have a representative and who is a party to a civil suit, pursuant to CRCP 17(c).

4. Appointment of GAL for Emergency or Involuntary Commitment of Alcoholics or Drug Abusers: Upon the filing of a petition for involuntary commitment of alcoholics or drug abusers, a guardian ad litem may be appointed for the person if the court deems the person’s presence in court may be injurious to him or her pursuant to Title 27.

5. Appointment of Non-Attorney Child and Family Investigator: A non-attorney child and family investigator may be appointed in a domestic relations case pursuant to § 14-10-116.5, C.R.S. For appointment of an attorney child and family investigator, see applicable guidelines implemented through the Office of the Child’s Representative. Pursuant to § 14-10-116.5(b), C.R.S., in cases where the appointment is made prior to the entry of a decree of dissolution or legal separation, the court shall consider the combined income and assets of both parties for purposes of determining indigence and whether the state shall bear the costs, fees, or disbursements related to the appointment of a child and family investigator. The court shall enter an order for costs, fees, and disbursements against any or all of the parties and, as provided in § 14-10-116.5(c), C.R.S., shall make every reasonable effort to apportion costs between the parties in a manner that will minimize the costs, fees, and disbursements that shall be borne by the state. When a responsible party is indigent, the state will pay the non-attorney child and family investigator at the rates established in section IV.C. and IV.D. for the portion of authorized fees and expenses for which the indigent party is responsible.

6. Appointment of Court Visitor: A court visitor shall be appointed for a respondent pursuant to Title 15.

IV. Guidelines for Payment of Counsel, Guardians ad Litem, Non-Attorney Child and Family Investigators, and Court Visitors

A. The fees and costs associated with appointments described under this directive shall be paid by the Judicial Department as follows:

1. Fees and Expenses: Appointments may be made under contracts developed by the Judicial Department or on a non-contract hourly fee basis. Upon appointment of counsel or other appointee, court staff shall enter the appointment in the ICON/Eclipse computer system and complete the appointment on the CAC system for payment and tracking purposes. Claims for payment on hourly appointments shall be entered in the Department’s Internet-based payment system (CACS); or, if the Financial Services Division of the State Court Administrator’s Office has granted the appointee an exception to the requirement to invoice using CACS, claims for payment shall be filed with the District Administrator in the respective judicial district on the Request and Authorization for Payment of Fees (form JDF207). Claims for payment on flat-fee, contract appointments shall be entered in CACS; or, if the Financial Services Division of the State Court Administrator’s Office has granted the appointee an exception to the requirement to invoice using CACS, such claims for payment shall be filed with the State Court Administrator’s Office using the process and format required by that office. All requests for hourly payment must be in compliance with Guidelines for Payment of Court-Appointed Counsel, Guardians ad litem, Non-Attorney Child and Family Investigators and Court Visitors Paid by the Judicial Department for Itemized Fees and Expenses on an Hourly Basis (Attachment D) and shall follow the Court Appointees and Investigators Procedures for Payment of Fees and Expenses (Attachment E). All hourly payment requests shall be reviewed by the District Administrator or his/her designee to ensure that all charges are appropriate and in compliance with this directive and applicable fiscal policies and procedures, before authorizing the request. The Office of the State Court Administrator may review, verify, and revise, when appropriate, authorizations for payment. All incomplete or erroneous claims will be returned to the attorney or other appointee with an explanation concerning the issue(s) identified.

2. Court Costs, Expert Witness Fees, and Related Expenses: Costs incurred by counsel shall be pre-approved and paid by the appointing court. Court costs include such items as: expert witness fees and expenses, service of process, language interpreter fees, mental health examinations, transcripts, and discovery costs. Payment of all court costs shall be in accordance with applicable statutes, Chief Justice Directives/Orders, and other policies and procedures of the Judicial Department, including the Mandated Costs chapter of the Judicial Department’s Fiscal Policies and Procedures manual. A motion requesting authorization to hire an investigator, to pay court costs, or for expert witness fees shall be submitted to the court. The court shall authorize such appointments or payments as the judge or magistrate deems necessary, and shall issue an order authorizing the amount of the costs, fees and expenses that may be incurred under this section. For maximum rates for payment of expert witnesses, see CJD 87-01, as amended.

3. Online Appointee Billing: Appointees shall invoice the Judicial Department using the Department’s Internet-based system (CACS) according to the policies and procedures set forth by the State Court Administrator’s Office. An appointee may request an exception to this requirement by contacting the Financial Services Division at the State Court Administrator’s Office. In the request, the appointee shall describe the extenuating circumstances preventing the use of CACS for invoicing. The Director of Financial Services or his/her designee shall review such requests and shall have final decision authority concerning the granting or denial of the request. Failure of an appointee to learn or avail him/herself of training on the use of CACS is not sufficient cause to warrant an exception.

4. To maintain the security and integrity of CACS, appointees shall immediately notify the Director of Financial Services, or his/her designee, in writing, of any changes in appointee’s staffing or practice that may require cancellation or other changes in appointee’s or appointee’s staff’s CACS login authority and credentials.

5. Failure of appointee to appropriately use CACS shall be sufficient grounds for denial of payment and may result in removal from consideration for future appointments.

B. A flat fee contract system is available to the Judicial Districts to use in appointing and compensating attorneys for certain appointment types. The Department contracts with individual attorneys for this purpose on a state fiscal-year basis (July 1 through June 30) at rates established by the Department. Claims for payment by attorneys for appointments made under flat fee contracts shall be submitted by appointees in compliance with the procedures specified in the contract and set forth by the State Court Administrator’s Office. Claims for payment not covered by flat fee contracts with the Department shall be submitted in accordance with the procedures described in this Section IV and Attachment E. Judicial districts shall make every effort to appoint flat fee contractors on the appointment list if that compensation method is selected by the district. For each appointment type in which flat fee or hourly contracts with private counsel may be established, either a flat fee compensation method or an hourly compensation method should be adopted by the district for the given fiscal year, not both.

C. The following maximum hourly rates are established for any hourly invoicing: (No payment shall be authorized for hourly rates that exceed the "maximum hourly rates".)

MAXIMUM HOURLY RATES

    In court and Out of court
Court-appointed Counsel and Guardian ad litem (for adult)   *$65 per hour
(07/01/08)
Non-Attorney Child and Family Investigator   $25 per hour
(07/01/08)*
Paralegal, Legal Assistant, or Law Clerk Time    $25 per hour
(07/01/06)*
Court-authorized Investigator   $33 per hour
(07/01/06)*
Court Visitor   $25 per hour
* For work performed on or after date indicated

D. Maximum total fees, established July 1, 2008, that may be paid by the Department for court-appointed counsel, guardians ad litem, non-attorney child and family investigators, or court visitors are as follows:

MAXIMUM TOTAL FEE PER APPOINTMENT

Title 19—Dependency and Neglect Matters
Respondent Parent Counsel   $2,870
Non-Attorney Child and Family Investigator    $1,250
Title 19—Other Matters (i.e., delinquency GAL, support, adoption, paternity, etc.)
Non-Attorney Child and Family Investigator    $625
Titles 14 and 15
Counsel (probate only)   $2,870
Guardian ad litem (for adult)   $2,870
Non-Attorney Child and Family Investigator   $1,250
Court Visitor   $500
Titles 22 and 27
 Counsel   $750
 Counsel Guardian ad Litem (for adult)   $750
Appeals
Counsel and Guardian ad Litem (for adult)   $2,870

E. Under no circumstances shall the total fees exceed the maximums outlined without a detailed written motion and detailed written order showing the specific special circumstances that justify fees in excess of the maximum (see guidelines in Attachment D, paragraph B). If a court-appointed attorney chooses to use the support of a paralegal, legal assistant, investigator, or law clerk, the combined fees, inclusive of expenses, of the attorney or non-attorney appointee and other support staff shall not exceed the total maximum outlined.

F. To maintain effective representation by court-appointed counsel and to provide basic fairness to attorneys and others so appointed, the State Court Administrator is directed by the Chief Justice to periodically review and make recommendations concerning the fee schedule established in this CJD and/or Chief justice Order for court-appointed counsel.

G. Appointees shall maintain records of all work performed relating to court appointments and make all such records available to the Judicial Department for inspection, audit, and evaluation in such form and manner as the Department in its discretion may require, subject to any applicable attorney/client privilege.

H. In instances in which fees for activity such as travel time, waiting time, and mileage expenses were incurred simultaneously for more than one court appointment, appointees shall apportion the fees or expenses across cases, as applicable. (For example, traveling to/from court would be billed 50% on the client A appointment and 50% on the client B appointment if the appointee made one trip to cover both clients’ hearings.)

V. Reimbursement for the State for Court-Appointed Costs

A. For all appointments requiring a finding of indigence, the court shall review the indigency status of the responsible party(ies) or estate at the time of appointment, during the course of the appointment (at the court’s discretion if questions concerning indigence arise), and, if feasible, at the time of case closure. In the case of a court visitor appointment, the petitioner and/or the respondent may be ordered to pay all or a portion of the visitor’s fees and expenses if they are not determined to be indigent. If the court determines, at any time before or after appointment of counsel, guardian ad litem, non-attorney child and family investigator or court visitor, that the responsible party(ies) or estate has the ability to pay all or part of the costs for representation or other costs, the court shall enter a written order that the person(s) or estate reimburse all or part of said costs. Such order shall constitute a final judgment including costs of collection and may be collected by the state in any manner authorized by law.

B. Collection of fees and costs related to court-appointed representation and other costs may be referred to the Collections Investigator or a private collector with whom the Judicial Department has contracted.

C. Costs for representation provided may be assessed against the responsible party(ies) at the fixed hourly rate for state-funded private counsel, at the state-funded counsel contract rate, or at the hourly cost of providing legal representation for the number of hours reported by counsel to the court. Other costs incurred may also be assessed including, for example, costs for transcripts, witness fees and expenses, and costs for service of process. In addition, the responsible party(ies) may be required to pay costs of collection. Costs incurred for accommodations required under the Americans with Disabilities Act, such as sign language interpreter fees, may not be assessed.

VI. Training of Guardians ad litem and Court Visitors Appointed on Behalf of Wards or Impaired Adults

A. Attorneys appointed as a guardian ad litem shall possess the knowledge, expertise, and training necessary to perform the court appointment, and shall be subject to all of the rules and standards of the legal profession.

B. In addition, the guardian ad litem shall obtain 10 hours of continuing legal education, or other courses relevant to an appointment that enhance the attorney’s knowledge of the issues in representation, per legal education reporting period. The court shall require that proof of such education, expertise, or experience is on file with the court at the time of appointment.

C. In those cases in which a non-attorney is appointed as a court visitor, the non-attorney shall also demonstrate the knowledge, expertise, and training necessary to fulfill the terms of the appointment. The court may determine whether the person’s knowledge, expertise, and training are adequate for an appointment, and may require the person to demonstrate his or her qualifications.

VII. Duties of Guardians ad litem and Court Visitors Appointed on Behalf of Wards or Impaired Adults

A. The person appointed shall diligently take steps that he or she deems necessary to protect the interest of the person for whom he or she was appointed, under the terms and conditions of the order of appointment, including any specific duties set forth in that or any subsequent order. If the appointee finds it necessary and in the best interests of the ward or impaired adult, the appointee may request that the court expand the terms of the appointment and scope of the duties.

B. Persons appointed shall perform all duties as directed by the court, which may include some or all of the duties described below:

1. Attend all court hearings and provide accurate and current information directly to the court. (Although another qualified attorney may substitute for some hearings, this should be the exception.)

2. At the court’s direction and in compliance with applicable statutes, file written or oral report(s) with the court and all other parties.

3. Conduct an independent investigation in a timely manner, which shall include, at a minimum:

a. Personally meeting with and observing the client, as well as proposed custodians, when appropriate;

b. Reviewing court files and relevant records, reports, and documents;

In cases in which the ward or impaired person is living or placed more than 100 miles outside of the jurisdiction of the court, the requirements to personally meet with and interview the person are waived unless extraordinary circumstances warrant the expenditure of state funds required for such visits. However, the appointee shall endeavor to meet the person if and when that person is within 100 miles of the jurisdiction of the court.

VIII. Duties of Judges and Magistrates

A. For any type of court appointment under this Chief Justice Directive, the appointing judge or magistrate shall, to the extent practical and subject to attorney-client privilege, monitor the actions of the appointee to ensure compliance with the duties and scope specified in the order of appointment.

B. Judges and magistrates shall ensure that guardians ad litem and court visitors involved with cases under their jurisdiction are representing the best interests of adult wards or impaired adults and performing the duties specified in this order. In providing this oversight, judges and magistrates shall:

1. Routinely monitor compliance with this directive;

2. Encourage local bar associations to develop and implement mentor programs which will enable prospective guardians ad litem and court visitors to learn these areas of the law;

3. Meet with guardians ad litem and court visitors at the first appointment to provide guidance and clarify the expectations of the court;

4. Hold periodic meetings with all practicing guardians ad litem and court visitors as the court deems necessary to ensure adequate representation of wards or impaired adults.

IX. Complaints

A. Colorado’s "Practice Guidelines for Respondent Parents’ Counsel in Dependency and Neglect Cases" (Attachment F to this directive) may provide helpful guidance in the Court’s investigation of the complaint regarding court-appointed Respondent Parents’ Counsel. All written complaints and documentation of verbal complaints regarding the performance of any state paid counsel, guardian ad litem, non-attorney child and family investigator or court visitors appointed pursuant to this directive shall be submitted to the District Administrator. The District Administrator shall forward the complaint to the presiding judge or, if appropriate, the chief judge of the district unless a conflict exists due to the judge’s involvement in a pending case. If a conflict exists, the District Administrator will forward the complaint to another judge designated for that purpose.

B. If the complaint involves an attorney and the reviewing judge or District Administrator determines that the person may have violated the Colorado Rules of Professional Conduct, the information shall be filed with the Colorado Supreme Court Office of Attorney Regulation Counsel. The Regulation Counsel shall advise the reporting judge or District Administrator and the State Court Administrator of the final outcome of the investigation.

C. Copies of all written complaints and documentation of verbal complaints, and the results of the investigation including any action taken with regard to Judicial paid counsel, guardians ad litem, non-attorney child and family investigators, and court visitors shall be forwarded by the District Administrator to the State Court Administrator’s Office. The State Court Administrator may conduct an additional investigation and take action he believes is necessary to resolve any concerns or issues raised by the complaint. Such action may include, but is not limited to, terminating the contract with the attorney, GAL, non-attorney child and family investigator or court visitor.

X. Sanctions

A. All contracts with the Judicial Department for appointments addressed in this Chief Justice Directive shall include a provision requiring compliance with this Chief Justice Directive. Failure to comply with this Directive may result in termination of the contract and/or removal from the appointment list.

B. Judges and magistrates shall notify appointees that acceptance of the appointment requires compliance with this Directive, and that failure to comply may result in termination of the current appointment and/or removal from the appointment list.

XI. Grievances, Malpractice, and Liability

A. Attorneys appointed shall notify the State Court Administrator, in writing, within five (5) days of any malpractice suit or grievance brought against them.

B. Appointees shall maintain adequate professional liability insurance for all work performed. In addition, appointees shall notify the State Court Administrator, in writing, within five (5) days if they cease to be covered by said liability insurance and shall not accept court appointments until coverage is reinstated.

CJD 04-05 is amended and adopted effective July 1, 2011.

Done at Denver, Colorado this 28th day of June 2011.

Michael L. Bender, Chief Justice
Colorado Supreme Court 

___________________________

CJD 11-02
Pilot Rules for Certain District Court Civil Cases

Adopted

Whereas, the Court desires to study whether adopting certain rules regarding the control of the discovery process reduces the expense of civil litigation in certain business actions, and

Whereas, the Court has determined that the pilot project requires the use of modified rules of Civil Procedure concerning the pleading, discovery and trial management of certain cases; and

Whereas, the Court carefully considered the adoption of the pilot rules by:

  • Publishing the proposal from the Colorado Pilot Project Committee (Committee);
  • Inviting public comment about the proposal from the Committee;
  • Holding a public hearing on January 19, 2011, concerning the Committee’s proposal;
  • Allowing and encouraging additional comment and suggestions to be made to the Court regarding the scope of the pilot project and the rules to be adopted;
  • Narrowing the scope of the pilot to include business cases; and
  • Redrafting rules to reflect the goals of the pilot to identify and narrow disputed issues at the earliest stage of litigation; require active ongoing case management by a single judge; and seek to keep litigation costs proportionate to the issues being litigated;

Now therefore, the Court orders the [attached] rules adopted for use in the designated cases in the First, Second, Seventeenth, Eighteenth, and Twentieth Judicial Districts. The cases to which the rules apply are described in Appendix A to the rules appended to this Directive.

These rules are effective January 1, 2012 and shall be applied to cases filed on or after that date. The pilot project is scheduled to be a two year pilot and shall apply to all applicable cases filed in the pilot district up to December 31, 2013 or until further order of the court.

The effect of the pilot will be studied by the Institute for the Advancement of the American Legal System (IAALS) working at the request of the Court. IAALS will issue a report on the effect of the pilot project upon the conclusion of the two year pilot.

Done at Denver, Colorado this 26th day of July 2011.

Michael L. Bender, Chief Justice
Colorado Supreme Court

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